BSB Answers on Equality Duty Proposed Changes

The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing. The BSB replied by inserting comments into our questions document. The original LF text is in plain text, and responses by the BSB in italics:

____________________

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.

We would like to request the following information.

  1. Were any individuals and/or groups consulted in formulating these proposals?  We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.      

The Bar Standards Board engages with a wide range of stakeholders on a continuing basis in taking forward our responsibility to promote diversity.  Specifically, we also engaged with the BSB Taskforces during the development and drafting of the proposed Equality Rules.                     

  1. Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.

All research carried out by the BSB in relation to equality, diversity and inclusion are listed in response to question 3a. below.

  1. In the 5 years to 31 August 2024:  (a) What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? (b) How often was non-compliance found?

Research carried out by the BSB

All research carried out can be found in this link:

https://www.barstandardsboard.org.uk/news-publications/research-and-statistics/bsb-research-reports.html

The following reports are of particular relevance:

BSB Pupillage Recruitment Report

https://www.barstandardsboard.org.uk/static/3b34ecde-3a3c-4e41-962d69e26d984531/c5600558-1097-4128-9eeac249683e08d3/BSB-Pupillage-recruitment-FINAL-report-February-2024.pdf

 Pupillage Quantitative Research Report

https://www.barstandardsboard.org.uk/static/a1864210-6f4b-4844-972aaa0269c5a614/Pupillage-Quantitative-Research-Report.pdf

 Pupillage Research Summary

https://www.barstandardsboard.org.uk/static/5c00760d-70f2-4893-a86dbb6b68761dfa/Combined-Pupillage-Research-Summary.pdf

 Income at the Bar by Gender and Ethnicity

https://www.barstandardsboard.org.uk/static/af6c9471-1328-4f4d-8f1baf5adb349d64/Income-at-the-Bar-by-Gender-and-Ethnicity-2022.pdf

 Trends in Demographics and Retention at the Bar 1990 – 2020

https://www.barstandardsboard.org.uk/static/12aaca1f-4d21-4f5a-b213641c63dae406/Trends-in-demographics-and-retention-at-the-Bar-1990-2020-Main-Body.pdf

Bullying, Discrimination, and Harassment at the Bar Report 

https://www.barstandardsboard.org.uk/static/896b55e0-72b2-4388-be291617735b8a25/ea23e7ad-cc4a-438f-b50d6929f2001c5d/October-2020-BDH-at-the-Bar-full-report.pdf

Regulatory Return

In 2020 the Supervision team issued the Regulatory Return to a selection of around 350 chambers, BSB entities and sole practitioners. A specific question in relation to Core Duty 8 was not included, but questions were asked to understand what chambers were doing to meet the requirements under the current Equality Rules, in relation to:

  • the inclusive working culture of chambers;
  • bullying, harassment, discrimination and victimisation;
  • diversity data;
  • flexible working; and 
  • allocation of work.

The Supervision team provided assessment letters to all those chambers selected, which set out specific actions (including those in relation to the current Equality Rules), where the required standard had not been met and further action was needed. For example, this included setting an action to ensure there was an anti-harassment policy, or making a recommendation for a fair allocation of work policy. The team worked closely to ensure that the actions were completed, until the chambers, BSB entities and sole practitioners could be assessed as low risk. Some of those selected required substantial guidance and input.

Our research (links above) shows that discrimination, bullying, and harassment persist within the Bar.

In the last 5 years 6 reports have been referred to the Supervision team specifically relating to concerns about discrimination. In addition, 5 reports were received in relation to bullying and harassment, as well as reports concerning other areas of the Equality Rules such as fair allocation of work and reasonable adjustments. There are also occasions where the team has initially received a report on an issue unrelated to the Equality Rules, only to discover that action is also needed in this area. For example, the team may receive a report relating to pupillage, but on exploring the matter further, there may be concerns about lack of reasonable adjustments for the pupil, the culture of chambers or victimisation.

For the most serious of cases, and in accordance with its Supervision strategy, Supervision Visits are carried out by the Supervision team and a report is then issued detailing the action needed. The team works with the chambers, BSB entities, sole practitioners or Authorised Education and Training Organisations to ensure that they have met their regulatory obligations, including those set out in the Equality Rules, and that all the actions have been completed, before re-assessing them as low risk.

  1. How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?         

There have been no disciplinary findings against barristers for non-compliance with Core Duty 8. The main reason is the use of the word “unlawfully” within the Core Duty, which limits any action we can take under CD8 to conduct that falls within the definition of discrimination in the Equality Act. This creates a relatively high bar for successful action. In contrast, under CD5 we have greater flexibility to address behaviour that is discriminatory in nature, without having to prove it amounts to unlawful discrimination. In the period specified, we have received 144 reports relating to discriminatory behaviour, of which 20 were allocated to Enforcement. Of these reports that were accepted for investigation, none had a breach of Core Duty 8 proved at Disciplinary Tribunal. The BSB received 98 reports relating to bullying & harassment, of which 22 were allocated to Enforcement; and 60 cases relating to Sexual Harassment, of which 21 were allocated to Enforcement.

  1. What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.

We are considering the equality impact of our rules on those who share protected characteristics. For example, we have proposed the removal of the mandatory requirement to have an EDO as we have evidence that the burden of this role disproportionately falls on the shoulders of those who share protected characteristics and often those at the junior end of the Bar. We held a roundtable discussion on the 5th of November with EDOs and DDOs to ascertain if there would be any adverse impacts as a result of removing this mandatory requirement. Through our consultation process we are very keen further to understand the equality impact of our proposals. This includes where they may have a positive impact, as well as where they may have an adverse impact. We are exploring this through our various engagement events, and we are very keen to hear from stakeholders on this point through the responses to our consultation.

As the EIA is currently in progress and the consultation process is a means for obtaining evidence on the equality impact, we are currently not able to share this document with you. However, we are keen to hear from Legal Feminist where you consider there to be either positive or adverse equality impact in relation to our proposed rules, and what if any mitigating actions we may take.

  1. What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.

Proportionality has been a key consideration in the drafting of the new rules. As our proposed rules only require the profession to ‘take reasonable steps’, what is reasonable will be assessed on a case by case-by-case basis where cost to chambers will be a relevant consideration. We will take on board any feedback received through this consultation process in relation to cost.

  1. What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.

Promoting access can be achieved through a wide range of interventions not all involving significant cost.  It will be for chambers to consider the most cost-effective solutions in their own circumstances.  Where there are chambers found to be not accessible after the 5-year period, it will be assessed on a case-by-case basis and fall on the facts to ascertain whether reasons for not doing so are justified. Cost of planning applications, listed buildings consent surveys and applications, project management and building works, potential moving costs, will all be factors that will be considered in deciding whether restrictions on accessibility can be reasonably justified.

In terms of accessibility audits and accessibility plans, these do not need to be externally commissioned. What is proposed is to demonstrate that access needs have been considered and reasonable steps have been taken to make one’s practice accessible. We will make extensive guidance and support available to the profession.

We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

No, the Business Plan lists total costs of £17,805k of which £8,477k are BSB direct staff costs and £3,412k are BSB direct non-staff costs and £5,916k is our contribution to shared services (so that £5,916k is a combination of staff and non-staff costs).

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.

Not precisely, Business Plan lists total costs of £14,732k of which £7,114k are BSB direct staff costs and £2,224k are BSB direct non-staff costs (so total BSB direct costs of £9,338k) and £5,394k is our contribution to shared services.

BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.

£9,028k to be precise and otherwise correct.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB direct budget is correct. The 2017-18 Business Plan doesn’t specify the precise costs for our contribution to shared services. The 2017-18 Business Plan only specified BSB direct costs.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

Correct

  1. (i)        Please confirm if our understanding as regards the budget for the years listed above is correct.

Please see above.

(ii)       How much is spent at present by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?

We do not allocate budgets in that way.

(iii)      Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so, will they be disclosed prior to the end date for responses to the consultation

We will look at how this is resourced as part of future planning cycles, once the outcome of the consultation is clear, the rules have changed, guidance has been produced and there has been a bedding-in period. However, this is likely to be a priority area of Supervision and enforcement, and it will be managed from within the current team, using our current approach to conducting thematic reviews.

Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.

In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:

  1. Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
  2. Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.

We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.

We look forward to hearing from you.

BSB Consultation on Equality Rules – Legal Feminist Questions

The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing:

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.

We would like to request the following information.

  1. Were any individuals and/or groups consulted in formulating these proposals?  We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.                                             
  2. Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.
  3. In the 5 years to 31 August 2024: What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? How often was non-compliance found?
  4. How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?                                                                    
  5. What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.
  6. What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.
  7. What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.
  8. We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each year’s business plan, but it appears to us that the following summary is correct.

BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.

BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

(i)        Please confirm if our understanding as regards the budget for the years listed above is correct.

(ii)       How much is spent at present  by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?

(iii)      Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so will they  be disclosed prior to the end date for responses  to the consultation

Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.

In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:

  1. Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
  2. Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.

We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.

We look forward to hearing from you.

Yours faithfully

FWS v Scottish Ministers: what to read before the hearing

The hearing next week before the Supreme Court of For Women Scotland v Scottish Ministers is a big deal.

Previous cases in the appellate courts have had serious implications for the impact of gender reassignment on women’s rights. Three in particular spring to mind: Croft v Royal Mail Group (2003), in which the Court of Appeal speculates inconclusively about what degree of surgical or medical “transition” ought to be required before a man should be allowed to use women’s facilities in the workplace; Goodwin v UK (2002), in which the European Court of Human Rights laid the foundations for the Gender Recognition Act 2004; and Chief Constable of West Yorkshire Police v A (2005), in which members of the House of Lords came up with the eye-popping notion of a transsexual who was “visually and for all practical purposes indistinguishable” from a member of the opposite sex, and opined that it would be unreasonable for detainees to be unwilling to be searched by “a trans person of the same sex” (ie a person of the opposite sex).

All three cases have something striking in common: there was no-one in court whose job was to represent the interests of women, and women’s rights were in each case casually swept aside. This appears with particular starkness at ¶91 of the judgment of the ECtHR in Goodwin:



No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

The alert reader will notice who in particular is meant here by the “society” that is expected to tolerate a certain inconvenience: women. The reader both alert and well-informed will understand by now that “inconvenience” has turned out to stand for things like being gaslit, tricked, shamed or coerced into sharing communal showers or changing rooms with any man who says he is a woman; being required to submit to a strip-search conducted by such a man; being tricked into submitting to intimate medical procedures at the hands of such men; or being imprisoned with male sex offenders.

Against this background, FWS v Scottish Ministers makes a refreshing change. The appeal is brought by a feminist organisation with the express purpose of defending women’s rights. For the first time, an appellate court considering these issues will be required to treat women as human beings with agency and rights of their own, and will be asked to give women’s rights and interests their full weight. It’s going to be a novel experience.

The written arguments of the parties and the intervenors have now all (with the exception of Amnesty UK’s intervention) been published. The arguments themselves make for pretty dry and technical reading, but we also have the benefit of analysis from various commentators. The purpose of this post is not to add to that, but to collect together a list of links for anyone interested in the issues. I’ll try to keep this page updated with any further commentary that becomes available (or comes to my attention) between now and the end of the hearing — so if there’s anything I’ve missed, please let me know in comments.

First, the written arguments of the parties and intervenors can be found here:  UK Supreme Court – For Women Scotland. They are also published with a collection of further links by Tribunal Tweets, who will be live-tweeting the hearing: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court 

Academics and practitioners

Dr Claire Methven O’Brien 

The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations? 

Dr Michael Foran  

UK Supreme Court to decide “What is a woman?”: A detailed look at the arguments

What is a woman? The Scottish Government’s case 

Can the meaning of “sex” in the Equality Act vary depending on context? 

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham 

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method – 

Scott Wortley

Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,

— Scott Wortley (@scottwortley.bsky.social) 2024-11-19T20:51:03.317Z

Organisations

Murray Blackburn Mackenzie

For Women Scotland vs the Scottish Ministers: making the arguments transparent – Murray Blackburn Mackenzie

Briefing note: For Women Scotland vs the Scottish Ministers, UK Supreme Court, 26-27 November 2024 – Murray Blackburn Mackenzie

Sex Matters

Sex Matters’ intervention to the Supreme Court 

What about the other side? 

We have appealed on Twitter for analysis arguing that the Scottish Government should win. We haven’t heard of much, but there are these links: 

FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.

— A Mere Solicitor (@ameresolicitor.bsky.social) 2024-11-22T18:33:35.561Z

Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.

— Robin Moira White (@robinmoirawhite.bsky.social) 2024-11-22T18:04:27.483Z

https://bsky.app/profile/concerned-person.bsky.social/post/3lbkkq7mbf22g

Defining ‘sex’ in the Equality Act

Sex and deception

I wrote last week about why it’s necessary to keep all men out of spaces that are supposed to be for women only. I ended, on the subject of women traumatised by male violence:  

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say  “You can have single-sex spaces, mostly.  Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.” 

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

I had put a hypothetical scenario of this kind when I was cross-examining a member of Edinburgh Rape Crisis Centre’s board in Adams v ERCC last January. The witness agreed agreed that this was perfectly plausible: 


A Muslim woman who does not have mother tongue English, who is a rape survivor, makes an appointment to see a support worker and she is assigned to Mridul. She is told all the support workers are women and she may presently find herself alone in a room talking about her sexual trauma to Mridul Wadhwa.

The witness gave clear, definite evidence that although she believed that it was Wadhwa’s practice to disclose at the first interview with a service user that he was a “trans woman”, so far as the ERCC board was concerned, he had no obligation to do so. It was perfectly legitimate for him to counsel a rape victim over a number of sessions without disclosing his true sex. 

The point of my question was to demonstrate to the tribunal that the version of gender identity theory to which ERCC was signed up was so extreme that its witnesses would see nothing wrong with this situation if it should arise. The witness obliged.

At the time that I put that question, I had no reason to believe that anything like this had ever actually happened in a rape crisis centre in the UK. Shockingly, I know better now.

Since the hearing in Adams, I have had disclosed to me the testimony of a woman who sought counselling at a rape crisis centre. She was given one to one counselling with a counsellor who presented as female and referred to himself as a woman. The service-user continued to believe that her counsellor was a woman throughout all her counselling sessions until the last. In the last few minutes of the final session, the counsellor referred to himself as a “trans woman”. The service-user understood only then that she had over a series of sessions over several weeks been meeting a man, one to one in a private room, and confiding in him about her sexual trauma.

I am not a journalist, and I cannot independently verify this story.  But I find it wholly credible, particularly in light of the evidence that was given in Adams, and I have no reason to doubt that it is true. 

Discrimination law and the experimental method

I want to apply yesterday’s dazzling insight that peanuts have to be left out of peanut-free meals to the words of the Equality Act and the specific question before the Supreme Court in For Women Scotland v Scottish Ministers, to be heard later this month. This is another fairly short point, though a little more technical than yesterday’s. 

Broadly, the job of the EqA is to prohibit discrimination because of the various protected characteristics. But there are exceptions, so that it remains lawful for director of a play to insist that Juliet is played by a girl and Romeo by a boy, or for a charity to define its beneficiaries by reference to race, national origin or sexual orientation. 

Paragraphs 26 and 27 of schedule 3 make it lawful to provide separate-sex services, and single-sex services, in situations engaging considerations like bodily privacy and dignity. They are expressed in general terms: what’s permitted is providing “single-sex” services or “separate services for persons of each sex”. Obviously that means excluding persons of the other sex. And the exclusion can only be a blanket rule, or the service can’t truthfully be described as separate or single-sex, just as you can’t describe a meal as “peanut free” if you sometimes put peanuts in it. 

That much is straightforward, or ought to be. (There is in fact plenty of dissent to it out there, some of it undeniably heavyweight. Nevertheless, I think the law is clear.)

The question for the Supreme Court in FWS is whether the protected characteristic of sex in the EqA — whether someone is regarded as a man or a woman — is affected by section 9(1) of the GRA, so that a man with a gender recognition certificate declaring him to be a woman counts as a woman for the purposes of discrimination law. In other words, whether “sex” in the EqA just means sex; or whether it means sex except for people with GRCs, in which case it means the sex they are deemed to be because of their GRI. We can call these two possibilities “sex” and “certificated sex” for short. 

The answer to this question determines what kind of discrimination a man with a GRC declaring him to be a woman is subjected to if he is excluded from a women-only service. 

The law has developed a thought experiment, complete with imaginary “experimental control”, as the way of finding out whether someone has suffered discrimination for a particular reason. You don’t have to be a scientist to use experimental controls: we all do it pretty intuitively. 

Suppose your desk lamp isn’t working. Is it the bulb? Is the socket it’s plugged into live? Is it the fuse in the plug? Is the switch in the “on” position? You  find out which is the culprit by trying different things one by one. You change the bulb, keeping everything else the same. Does it light? If so, the problem was the bulb. If not, you put the old bulb back, and try the switch in the other position. Still no light? Switch the switch back, and plug the lamp into a socket you know is live. 

Similarly, if Chris is refused entry to the women’s changing room on account of his obviously male appearance, is that because of his sex? The common sense answer is “yes”. But a GRC transcends (or confounds) common sense: if it operates in the context of the EqA, what matters is Chris’s certificated sex, not his actualy sex, so it tells us that Chris is a woman. To find out whether Chris has been excluded because of his sex, we have to compare him with someone who is of the opposite sex, and ask whether that person would have been excluded, too. 

So, obedient to the pretence required of us by Chris’s GRC, we set to work constructing a comparator. We say “Chris is a woman, so a person of the opposite sex is a man, let’s call him Christopher. This is a women-only space, so Christopher would have been excluded just like Chris. So Chris wasn’t excluded because of his (deemed female) sex, because a person of the opposite sex would also have been excluded.” (In truth, the chances are no-one will ever do anything to Chris because of his “female” sex, because it’s almost certainly obvious that he’s a bloke.)

If we run the same thought experiment on the different PC of gender reassignment, we get a different answer. The law tells us that Chris is a woman (even while our senses tell us different). Chris is a woman with the PC of gender reassignment: although legally a woman, he is a woman not by physiology, but by legal deeming. Obviously a woman without the PC of gender reassignment — that is, an actual female woman — would not have been excluded. So we have our answer: the reason Chris has been excluded is because of his PC of gender reassignment, not his sex. 

That means that excluding Chris can’t be justified under ¶26 or 27 of schedule 3, because those operate to permit sex discrimiation. But it may still be lawful to exclude Chris, because ¶28 of schedule 3 provides that it’s not unlawful to discriminate on grounds of gender reassignment in relation to the provision of single or separate-sex services, provided “the conduct in question is a proportionate means of achieving a legitimate aim”. 

Remember, all this reasoning is proceeding on the assumption that that a GRC changes Chris’s sex for the purposes of the EqA. The weird thing about ¶28, on this assumption, is that it seems to say you have to work out whether the thing you did — excluding Chris — was a proportionate means of achieving a legitimate aim. But it’s always going to be — because, well, peanuts. If the space or service is single-sex, you can’t let a man in (even a man with a certificate), or in every sense that matters it’s no longer a single-sex space. A legal fiction can deem a man married to another man to be in a heterosexual marriage, or deem him to be female for pension purposes, etc, but  it doesn’t actually change the reality or the real consequences of a male body (or even the real consequences of the theoretical possibility of a male body). It won’t affect the trauma reaction of the already-traumatised female user of that space, or the justifiable outrage and affront of the non-traumatised woman who looks up when taking her knickers off to meet the eye of a man in a space she was told was for women only. The fact that the man in question has a secret certificate at home in a drawer won’t — even if somehow she knows about it — make her feel any less embarrassed, angry or alarmed. 

So ¶28 seems to call for  “case by case” decision-making in a situation in which only a blanket rule will do. I explored the practical impossibility of that here: https://www.legalfeminist.org.uk/2022/02/16/admission-to-women-only-spaces-and-case-by-case-assessment/. 

There are a lot of reasons why the Supreme Court should find for FWS, and this is only a relatively small one. But I think it’s pleasingly neat. 

The reason I say that is that the “certificated sex” assumption leads you into this weird, artificial, counter-factual reasoning about when you can and can’t exclude Chris — and you end up apparently having to make a case-by-case assessment of something that can only be satisfactorily dealt with by way of a general rule, precisely because the “single-sexness” of the space is about what you tell the female users of the space, and whether they can trust you. It’s not really about Chris and his individual characteristics at all. 

But as soon as you remove the GRA spanner from the works of the EqA, this bit of the machine starts running smoothly and rationally. 

On that assumption — that s.9(1) of the GRA doesn’t affect the EqA — this bit of the law can recognise Chris as the man he looks like, and is. He’s excluded because of his sex, which for these purposes remains male. And that’s lawful under ¶26 or 27 if it’s lawful to run a single-sex space at all. 

So what’s ¶28 for, on this hypothesis? Good question! I’m glad you asked it, because the answer is elegant and satisfying. The point of ¶28 is to make it lawful, where appropriate, to exclude not men, but some women from the space, because of their PC of gender reassignment. 

Mostly, women who say they are men (“trans men”) will be perfectly welcome in women-only spaces. That’s because they are women, with female bodies. Their presence won’t affront, humiliate or alarm anyone, and they are likely to have the same needs as any other woman. 

But some “trans men” have taken extreme steps to look like men. Women who do this can often do it quite successfully, for precisely the same reason that men who say they are women almost always remain very visibly male. The reason is testosterone. Testosterone is a powerful drug, and a one-way ticket. A man who has gone through male puberty will almost never be able to disguise its effects successfully in later life. But when a woman takes testosterone, she’s likely to acquire a much more male-looking physique, a broken male-sounding voice, facial hair and male-pattern baldness. So some women with the PC of gender reassignment really do look and sound pretty much like men, and there will be circumstances in which it is genuinely necessary to exclude them from women-only spaces for the sake of the other women in them. 

Obviously, this is a fact-sensitive judgement which will depend on the particular nature of the space or service, who else is likely to be using it, how it is organised, and how convincingly masculine is the appearance of the trans-identifying woman in question. In other words, it calls for precisely the kind of “case by case” decision-making that ¶28 seems to envisage. The difference is that on this hypothesis — that “sex” in the EqA simply means “sex” —“case by case” makes perfect sense.

Sex, peanuts and statutory interpretation

There’s an aspect of the FWS case (For Women Scotland v Scottish Ministers) due to be heard later this month in the Supreme Court that is so childishly simple that one worries that the cleverest judges in the land may be too clever for it. This isn’t  about the legal arguments that the Court will have to grapple with. It won’t win the case: dry, technical arguments about statutory interpretation are what will determine the outcome. But statutory interpretation should be done on a foundation of reality and logic. 

The point is this. Single-sex spaces for women can’t have men in them, because if they do, they’re not single-sex. 

I told you it was simple. It’s like the “no peanuts” rule for a peanut-free dish. If you label a dish “peanut free”, you have to leave the peanuts out. All of them. The fact that lots of people like peanuts is no answer. Peanut-free dishes aren’t about those people: they’re about the people who may go into anaphylactic shock and die if they eat a peanut. It doesn’t matter if the peanut has been mashed to a paste, moulded into the shape of a walnut and scented with walnut oil, so that no-one looking at it, smelling it or eating it would dream that it might be a peanut. It doesn’t matter if it’s got a special certificate that says that for legal purposes it’s a walnut. It still needs to be left out of the peanut-free dish, or the peanut-free dish ain’t peanut-free. 

I have reason for my worry. It may be a simple point, but it’s one that the House of Lords managed to miss in Chief Constable of West Yorkshire Police v A [2005] 1 AC 51. This is a pre-GRA case, so of tangential relevance at best to what the Supreme Court has to decide later this month, but it’s a troubling precedent all the same.  Lord Bingham said: 

In my opinion, effect 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. No one of that gender searched by such a person could reasonably object to the search. 

This is essentially the “case by case” approach to deciding whether or not a particular man should be permitted to use women’s facilities. It still has proponents. “Oh, but surely this particular man — this man who has wished with all his heart that he was female since early childhood, who has “lived as” a woman for decades now, who has had all the hormonal, surgical and cosmetic  treatment money can buy to look as much like a woman as possible — surely no-one would be so heartless as to exclude him?”  

This is coming at the problem from the wrong angle. It’s not about the man who wants to be treated as a woman or his wants or needs: it’s about the truthfulness and trustworthiness of the sign on the door that says “women only”. Because the female users of that space need to be able to be sure that there will be no men there: not even men who look very like women. Especially not men who look very like women. 

Think about that for a moment, this idea of a man who is “visually and for all practical purposes indistinguishable” from a woman. Lots of women have suffered male violence, and some of those are permanently traumatised to the point that if they are surprised by a man in a supposedly female-only space, they will be retraumatised. These women may need domestic violence shelters and rape crisis services at certain times, but they don’t engage with the world solely as rape or domestic violence survivors. They have ordinary lives, too. They use public toilets, hospitals, gyms; they visit pubs, galleries, cafés, museums, theatres. They don’t wear a special badge or uniform so that we can identify them and make sure we cater for their needs. We don’t know who they are. 

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say  “You can have single-sex spaces, mostly.  Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.” 

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

10 easy steps to the perfect authorities bundle

Getting everyone’s markings onto one copy of the authorities bundle can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. Here’s how to do it smoothly.

Getting an authorities bundle agreed and finalised for the Court of Appeal can be a stressy pain. 

Agreeing a list of authorities and compiling PDF and hard copies of the bundle isn’t too bad. A lot of the guidance in 10 easy steps to creating the perfect hearing bundle  is relevant to the practicalities of things like shuffling the authorities into date order, producing an index and making sure the pagination and page labels line up. The bit that can be tiresome is getting everyone’s sidelining marking the passages on which they rely onto the same PDF copy of the bundle before it is printed and delivered to the court. 

One way (perhaps the usual way) of doing this is to send the PDF authorities bundle round all the different parties in turn, for each of them to add their sidelining one by one. If the bundle is in several volumes, it’s likely to be quicker if the different volumes take different routes round the parties — so that, say, A can be marking up volume 1 while B is marking up volume 2 and C is marking up volume 3. And then everyone swaps round, and hopefully you end up with everyone’s markings on each volume.

I suppose in theory it could all go like clockwork. But if someone is slow, or the PDFs circulate for some reason in an unexpected order, or someone doesn’t read the instructions carefully enough and annotates the wrong volume at the wrong moment, it can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. 

If this description brings you out in a clammy sweat of remembered stress, I am your bundle fairy, and I am here to make your life better next time. 

  1. Start with a folder, in OneDrive or some other location you can easily share with the other parties. Call it “joint authorities bundle” or something of the kind. Save in it court-ready PDFs of all the authorities you rely on, each one named with its full citation, prefixed with its year (or year and month, if you have a cluster of authorities from a single year), eg “2015 BBC v Roden [2015] ICR 985.pdf”. (Prefixing the names with the year and including the full citation is to force sorting in date order, and to make it easy to extract a draft index from the file list: see further 10 easy steps.)
  2. Add sidelining to the PDFs to mark the passages you rely on as you go along. 
  3. Share  your folder with the other parties. Ask them to add any authorities they rely on that aren’t already on your list, named in the same way, and sidelined for the passages they rely  on.
  4. Read the guidance at paragraph 29 of Practice Direction 52C.
  5. Bin most of your authorities. 
  6. Once your collection is complete (and pruned as necessary) merge the reports, ready-sidelined, into a single PDF and add an index page.
  7. Sort out page labels and pagination, and hyperlink the index to the first page of each report.  Again, you can adapt the instructions from 10 easy steps for this: the principle’s the same. The individual authorities are now clutter, so move them out of your shared folder (though probably not to the bin, just in case of mishap). 
  8. Check whether you want to sideline any passages from the authorities contributed by the other parties, and do so if you want to.
  9. Invite the other parties to do the same with yours, and each other’s. Unfortunately (anyway in OneDrive – I haven’t tried alternatives) you can’t actually all do this at the same time without using snazzy collaboration tools, but if everyone’s marked up their own authorities before putting them in the shared folder, there probably won’t be very much more to do at this stage. If it’s at all complicated, I’d suggest sharing a schedule of time slots, asking everyone to mark the window within which they plan to do any further sidelining, and then stick to those times. 
  10. Once everyone’s added any further sidelining, you’re done.

Recording the sex of rapists: what does the law require?

Guest blogger Dr Claire Methven O’Brien explains how Police Scotland are mis-recording the sex of offenders.

Claire Methven O’Brien

How should public bodies, and particularly the police, record the sex of individuals charged or convicted of rape?

This once uncontroversial question is now attracting scrutiny at Holyrood, by oversight bodies and in the media. This has revealed that across the Scottish justice system, policy provides for the production of official data based on individuals’ self-identified gender rather than their biological sex. Although defended as necessary to align with human rights and equality concerns, this approach in fact contradicts international human rights requirements.

Recording sex and gender: approach of Scottish justice actors

A 2021 petition lodged with Holyrood’s Citizen Participation and Public Petitions Committee exhorted ‘Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape’ (PE 1876).  As defined in Scotland (Sexual Offences (Scotland) Act 2009, section 1), rape may be perpetrated by a biological man or biological woman, victims may be biologically male or female, and women may also be liable on an ‘art and part’ basis. 

Accurately tracking incidence and trends in sexual crime, including with reference to specific individual characteristics, requires the collection of data on both sex and gender. However, in its evidence to the Petitions Committee, Police Scotland disclosed that on all systems such as crime management and custody databases, it uses sex and gender interchangeably – not just for rape, but for all offences, whether or not of a sexual nature. Further, the force does not ‘routinely ask the gender or sex of people with whom they interact’ but bases the sex/gender identification of individuals on how they self-declare, or ‘…on how the person presents to officers at the time of engagement’, unless doing otherwise is ‘evidentially critical’. ‘No evidence or certification as proof of biological sex or gender identity’ is required unless this is ‘pertinent’ to an investigation.

According to Police Scotland, this approach reflects ‘legislative compliance, operational need and the values of respect, integrity, fairness and human rights’ while also ‘promoting a strong sense of belonging’. 

The Scottish Courts and Tribunals Service, and the Crown Office and Procurator Fiscal Service mirror Police Scotland’s approach. This appears consistent with Scottish Government Guidance for public bodies on collecting sex and gender data for operational, statistical and research purposes, published in 2021. Policy and decision-making on ‘operational data collection decisions’, under the Guidance, is deferred to individual public authorities. Only in rare cases, the Guidance provides, will it ‘be necessary and proportionate’ for such bodies to depart from self-identified gender ‘to require a person to answer a question on their biological sex’. Though the investigation of serious sexual offences is in this regard cited as an example, on the other hand, the Guidance warns, gathering data on sex may otherwise ‘be an unjustifiable breach of privacy’. 

Sex-disaggregated data and violence against women: international standards

Are justice system actors entitled to take this approach when recording crime? At least in relation to crimes against women, it would appear not.

The UK is a party to various treaties that prohibit violence against women, including rape and sexual assault. These include the United Nations’ women’s rights convention (CEDAW, Arts 1-3, 5(a)) and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The United Kingdom ratified the latter in 2022.

As part of a package of preventive measures, Article 11 of the Istanbul Convention requires states to collect data on all forms of violence against women. Although, according to the Convention’s accompanying Explanatory Report, the drafters ‘left the choice of data categories used’ to states parties, ‘as a minimum requirement, recorded data on victim and perpetrator should be disaggregated by sex, age, type of violence as well as the relationship of the perpetrator to the victim, geographical location and any other factors deemed relevant by the state in question’ (para.76). 

Highlighting that ‘The usefulness and relevance’ of data on violence against women ‘depend above all’ on their quality‘, the Explanatory Report adds, ‘public authorities such as the judiciary, the police and social welfare services will need to set-up data systems …that go beyond the internal recording of the needs of the agency’ (para. 76). While the privacy of both victims and perpetrators should be safeguarded, it is clear that no privacy-based obstacle to collecting sex-disaggregated data is foreseen (para.80; see also Art. 65 Istanbul Convention). 

Additional guidance provided by the Council of Europe identifies sex-disaggregation of data collected by law enforcement as ‘compulsory’ (p.36). Likewise, European Union-level recommendations on rape statistics in particular direct states to ‘include specific breakdowns essential for identifying rape, including data on the sex and age of the victim and perpetrator and the victim–perpetrator relationship as a minimum’.

Under the UN women’s convention, states have been recommended, ‘To develop judiciary databases on complaints, investigations, prosecutions, and  protection orders related to [gender-based violence against women] disaggregated by age, sex, disability, crime, punishment, redress and relationship between the perpetrator and the victim.’  The UN Statistical Division (UN Guidelines for Producing Statistics on Violence against Women— Statistical Surveys, pp.26-27) also presumes the collection of data on perpetrators and victims by sex.

Conclusion

Police Scotland has adopted admirable commitments and policies on violence against women. How the force’s current position on data collection was arrived at, given this, is perplexing.   

In any event, it is incorrect that legal compliance and ‘human rights’ demand gender self-identification in the generation of official data on rape and forms of violence against women, to the exclusion of data on sex. On the contrary, they preclude it.

Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the Scottish Human Rights Commission or any other organisation. 

Further references

S Walby, Ensuring data collection and research on violence against women and domestic violence: Article 11 of the Istanbul Convention (COE, 2016)

Bailey v Stonewall

The decision is out in Allison Bailey’s appeal against the decision of the Employment Tribunal that Stonewall did not contravene s.111 Equality Act 2010. The Employment Appeal Tribunal has upheld the decision. 

The ET is the first instance tribunal. The EAT is the appellate tribunal which heard the appeal from the ET. Any onward appeal must go to the Court of Appeal – and can only be heard if permission is granted and if it satisfies the “second appeal test” of establishing an important principle or there is some other good reason for it to be heard. 

Allison Bailey was a barrister at Garden Court Chambers. A seasoned campaigner for lesbian and gay rights, she found herself in profound disagreement with the proposition then being advanced by Stonewall that some men were ‘truly’ lesbians, including those who had no intention of making a physical transition, if they said that they were. 

Both Ms Bailey and Stonewall made known their own views on this topic on Twitter. As a result of Ms Bailey’s tweets, Stonewall’s then Head of Trans Inclusion Kirrin Medcalf sent a complaint to Garden Court Chambers saying that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.” 

The detriments to which Garden Court Chambers then subjected Ms Bailey on the basis of her protected belief are set out in the ET decision and were found proved by the ET, which found that Garden Court had unlawfully discriminated against her, including by upholding Medcalf’s complaint against her. However, the ET did not find that Stonewall, through Kirrin Medcalf, had “induced” or “caused” that discrimination. 

She appealed to the EAT. 

Section 111 Equality Act 2010 prohibits anyone from instructing, causing or inducing another to discrimination against another:

111 Instructing, causing or inducing contraventions
(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

… 

The EAT had to consider what these meant, which is not something previously attempted by a court. Bourne J held that 

  1. In section 111(1), “It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.” [101]
  2. the word “induce” in section 111(3) “is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.” [105]  He also held that “it is in the nature of an inducement that the inducer intends the inducee to do what they are being induced to do.” [106] and so “inducing” in s.111(3) must be intentional. 

In other words, both instruction and inducement are intentional by their very nature. 

That left s.111(2) and “cause.” To this the judge applied a two-stage test: first, was the discrimination ‘caused’ by the defendant, applying a “but for” test – would it have happened but for the actions of the defendant? Then secondly, is it “fair, just and reasonable” to hold them liable? 

This came from a House of Lords authority, Kuwait Airways Corp v Iraqi Airways Co & Anor [2002] UKHL 19. This is a case which has provided significant authority in respect of the tort of conversion, litigation privilege and the iniquity exception, but it seems that this is the first time it has been cited in respect of discrimination. It has been cited in another EAT case, also decided by Bourne J, but in respect of litigation privilege rather than discrimination. 

The EAT held in this case that “by analogy with the approach to loss in Kuwait Airways, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the prohibited act on a “but for” basis and, second, that the causal connection is such that person A ought to be held liable. Borrowing Lord Nicholls’ phrase, those last words mean that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable.” 

It went on to hold that “For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.” The blame, ruled the EAT, was squarely with Garden Court Chambers for choosing to respond to the complaint in a discriminatory way. 

The application of a two-stage test to s.111(2) is an interesting one. It is very unclear as to whether this was actually argued by either party. It also seems at first blush that it may impose a more strenuous threshold than that set out in the plain words of the statute. However, it does undeniably bring the intention / effect into alignment with s.111(1) and s.111(3) and to that extent is an elegant solution. 

This is the first time that the courts have grappled with the definitions of s.111 and as an EAT judgment, this is binding until and unless overturned on appeal, or overruled by a higher court. 

Finally, a note which may sound into future cases. Paragraph 101 of the judgment provides that 

“section 111(1) requires that person A must not “instruct” person B to do in relation to person C anything which contravenes the relevant provisions. I agree with Mr Cooper that the question of person A’s mental state is subsumed into the nature of the prohibited act. It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction. So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

Put simply, the only intention of the person instructing need be that the person instructed carry out the instruction. If one body instructs another to implement policies that are indirectly discriminatory, the instructing body may be held liable.

This is likely not the last we have seen of s.111.

Women’s Consent Matters

The Liberal Democrats’ manifesto (published today) promises to abolish the spousal veto in the Gender Recognition Act 2004 (“GRA”) (see Section 19). The spousal veto is a phrase which has been widely used by politicians wishing to expand LGBT rights. But does such a veto actually exist? Let’s look at what the GRA actually says and not what politicians think it says. We will focus on marriages and the position of women married to men seeking a Gender Recognition Certificate (“GRC”).

The relevant provisions are these:-

  • An application for a GRC is made under S.1(1). Anyone doing so must under S.1(6) make a statutory declaration as to whether or not they are married. 
  • If they are married they also need to state whether it’s a marriage under the laws of England and Wales, Scotland, NI or a country outside the UK – S.1(6)(A).
  • Under S.1(6B), the married applicant must also include a statutory declaration by their spouse that they consent to the marriage continuing after the issue of a full GRC (a statutory declaration of consent) or a declaration that they have not made such a declaration. In short, the panel determining the application needs to be told the spouse’s view on the continuation of the marriage given that its fundamental basis will change on the grant of a GRC. A woman who married a man will find herself, after a GRC is issued, married to a legal woman i.e. in a same sex marriage. 
  • If the spouse has given their consent, they will be given notice by the Panel that an application for a GRC has been made – S.1(6D).
  • There are equivalent provisions for marriages in other parts of the UK, forced marriages and for civil partnerships.

What happens if a spouse does not consent

  • This is covered in Section 4 – Successful Applications. (Note the heading.)
  • Under S.4(3) the applicant gets an interim gender recognition certificate. 
  • An interim GRC will be turned into a full GRC if, within 6 months, the wife consents to the marriage continuing after the issue of a full GRC – S.4A(2)(d) i.e. the woman changes her mind.

So there is no veto. What there is instead is a pause to allow the wife to decide what to do about her marriage. During that pause the applicant has an interim GRC. 

What is the point of that six month pause?

Well, this should be obvious but let’s spell it out. It is to allow the wife to decide what to do about a marriage which has fundamentally changed.  Instead of being married to a man, she will find herself married to a man who says he is a woman and seeks to change his birth certificate to say so. It is not simply that she will be married to a woman in the future. She is being told that she has always been married to a woman.

– She can either decide to consent. 

– Or she can apply for an annulment of the marriage on the grounds that an interim GRC has been issued. Once that nullity of marriage order has been made, the court must issue a full GRC – S.5(1)(a). In short, the interim GRC starts the process of annulling the marriage to allow the final GRC to be issued.

– Or she can apply for an annulment of the marriage on other grounds and once that happens a full GRC is granted – S.5(2) – (7). 

Alternatively, a spouse can seek a divorce after the interim GRC has been granted.

Why does the pause matter?

Two main reasons:

  1. A divorce is not the same in law as an annulment and it can have consequences in other areas which can lead to prejudicial effects for the woman. One obvious area is for religious women. A divorce may prevent them from partaking fully in religious life and practices. An annulment through the religious courts can take a long time. Why should a woman be denied the benefits of something which matters to her when there is an alternative – annulment, provided for by the Act, triggered by the steps taken by her husband and which, crucially, does not deny him the GRC he is seeking? Denial of this to religious women may also potentially constitute discrimination on the grounds of religion. 

Even if a woman is not religious, she is entitled to some time and space to determine her future, whether she wants to stay in the marriage, what her husband’s decision to seek a GRC means for her, any children, the wider family, her life up until now and what she does next. This is the very minimum that a decent society should afford a woman facing such a significant change. Should this really need saying in 2024?

The GRA has provided an elegant solution which grants both an interim GRC, a means for the man to get his full GRC and autonomy to the woman to decide whether or not to continue in her marriage. 

It has been described as “awful” by one politician (Jess Phillips MP in 2020). This is a curiously hyperbolic description for a solution which seeks to balance the rights of both parties to a marriage.

What is the mischief which this change is seeking to address? No explanation is given – other than the lie that it is a “veto”. (See also Is this really necessary, Minister? – (legalfeminist.org.uk))

  1. It recognises that women married to men wishing to change gender legally should consent to a fundamental change in their marriage. Women’s consent matters. We should not have to say this or argue for this in 2024. A woman should not be forced to stay in a marriage against her will. She should not be forced into a same sex marriage against her will. She should not be forced to seek a divorce against her will as opposed to an annulment. 

It is troubling that in 2024 politicians should pay so little regard to the importance of women’s consent. What does it say about their attitude to women’s consent to matters affecting them? That “No does not mean No”? That a woman’s consent does not matter? That is an optional extra? That it comes second to the demands of men? And if women’s consent does not matter in a marriage, on what basis do such politicians argue that it should matter in other situations? Or should we worry that having chipped away at consent in this situation, it might be chipped away in others if men want something which that consent might deny them?

The Forced Marriage (Civil Protection) Act was passed in 2007 to prevent girls and young women being forced into marriage. The GRA provides a means whereby a woman is not forced to stay in a marriage. Rape in marriage was made unlawful in 1992 by the then House of Lords in R v R. The court rejected the idea of irrevocable consent through marriage, saying that it was unacceptable in modern times. It stated that each partner in a marriage should be seen as equal. Those principles – that there is no irrevocable consent and that partners in a marriage are equal – should not now be jettisoned merely to suit the wishes of one male partner wishing to make a fundamental change to his legal identity and the marriage he contracted. 

To call the provisions described above a spousal veto is a bad faith description. 

  • It is misleading about what the law actually says. 
  • It seeks to apportion blame unjustifiably on the woman.
  • It disguises the removal of her autonomy in a matter which fundamentally affects her life. 

What politicians like to call a spousal veto is in reality a spousal exit clause. It carefully balances the rights of equal partners in a marriage. There is no basis for wilfully misdescribing it nor removing it.