Protection and safety: a right or a privilege?

Guest blogger Ffion Lloyd writes for Legal Feminist on the Refugee Convention of 1951 and argues that persecution on the basis of sex should be formally recognised within it.

The 1951 Refugee Convention is a United Nations multilateral treaty, currently ratified by 148 countries. The Convention is the key legal document in defining who is a refugee, a refugee’s rights and the obligations on member states. The Convention sets out the bases upon which a person is entitled to refugee status: if they have  ‘a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group’. The primary aim of the Convention is to safeguard the rights and well-being of refugees. In its efforts to achieve this aim, the Convention alongside the United Nations High Commissioner for Refugees (UNHCR), strives to ensure everyone can exercise the right to seek asylum and find safe refuge in other countries. However, despite these admirable aims, refugee rights are restricted due to the Convention reasons, arguably, being  outdated (as per G S Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, Clarendon Press, 2007) 86 – 96), because there is little or no explicit protection from specific abuses that only apply to women. As argued by Charlesworth and Chaiton in The Boundaries of International Law: A Feminist Analysis “the very nature of international law has made dealing with the structural disadvantages of sex and gender difficult.” 

Historically, the protection of refugees was a matter of discretion dependent on the willingness of individual sovereign states. It included those who did not fall within any major international treaties, but who were deemed to have a valid claim to protection. In the 20th century refugee protection evolved domestically through ad hoc measures applied to new refugee groups, who were originally excluded from the Convention. This represented a positive development in human rights as it was the first of its kind to attempt to protect all refugees. Additionally, as interpretation of the Convention has varied, it has enabled countries to implement a degree of refugee protection alongside domestic laws. Nonetheless, the Convention has had fundamental flaws from its inception. One of the main historical criticisms of the Convention has been its enduring lack of protection of refugee women, who constitute half of all refugees.

Under the Convention, the Convention reasons of ‘social groups’ and ‘political opinions’ lack clarity. The Convention does not refer to sex as a ground for being afforded protection, an omission considered by some to be a failing of the Convention. The significance of this is that women are not expressly protected as falling within a Convention reason, despite  high incidences of female genital mutilation (FGM), human trafficking, forced marriages and rape cases. 

The World Health Organisation (WHO) defines FGM as “procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons” . It is a practice female refugees confront in their countries of origin and is one of the biggest problems facing female refugees.  According to a UNICEF report (2020) 29 countries allow FGM and it is claimed 52 million females alive today have undergone FGM. However, the number of women and girls who have undergone FGM could be substantially higher, as reliable worldwide data is not available. However, because sex is not a Convention reason to recognise persecution, protection from this specific abuse is inconsistent under the Convention, even though it is recognised as a violation of  female human rights, including freedom from torture and inhuman and degrading treatment, as well as right to health. FGM is a crime in many countries including the USA, the UK and South Africa where it is recognised as  a form of violence against females. It causes long lasting physical and psychological harm and is in direct opposition to  basic human rights

This was demonstrated in the case of Fornah v. Secretary of State for the Home Department in which Fornah claimed she could not return to Sierra Leone because she would face gender-based persecution by being forced to endure FGM. Consequently, the UK House of Lords agreed “intact” women in Sierra Leone, who had not undergone FGM, constituted a particular social group, for the purposes of the 1951 Convention. However, because sex is not a Convention reason, each FGM claim will need to be assessed on its own, to establish whether women facing FGM in that particular country, at a particular age, from a particular tribe or background, constitute a ‘particular social group.’ If not, then the woman is not protected under the Refugee Convention although she may be able to access alternative humanitarian protection.   Consequently, in my view, the Convention lags behind current global affairs because of the inconsistency of interpretation.

Baroness Hale stated in the case of Fornah that if the refugee definition was properly interpreted, it “can encompass gender-related claims.” On the other hand, despite the Convention allowing room for interpretation, under French refugee law, women who have already experienced FGM are not entitled to any form of protection. A third of the claims for refugee status in France have been made by females and of 36,720 applicants only 4,713 were granted refuge. Under French refugee law, the experience of past FGM is not regarded as constituting persecution, despite the risk of further FGM abuses. The assumed justification for this is that the mutilation is a single act that will not be repeated in the future and will not lead to further persecution. This line of reasoning was rejected in the USA in the case of Mukasey, in which the Board of Immigration Appeals held a woman who has been subject to FGM can be cut a second time. Despite this finding, France has not updated its refugee law. 

The UK only recently had its first ever successful criminal trial on FGM. In February 2019 a mother was sentenced to 14 years in prison for performing FGM on her 3-year-old daughter. This case demonstrates, although countries are attempting to protect vulnerable women and girls, it is clear more needs to be done. Despite this case being a success for female equality and basic human rights, it is unsettling that the UK only recently successfully protected its most vulnerable females. This case highlights how slow the law is on offering protection to females, specifically female refugees. 

Forced marriage has been acknowledged (in the phrase used by UNHCR) as a gender‐related form of persecution in some jurisdictions. Currently 117 countries allow forced marriages. Canada has accepted gender‐based grounds for refugee claims since the mid 1990’s, which includes forced marriage. Additionally, in TB (PSG – Women) Iran v. Secretary of State for the Home Department, the Immigration Appeal Tribunal held “young Iranian women who refuse to enter into arranged marriages” constituted a particular social group. Consequently, the appellant’s claim for asylum was upheld by the Immigration Appeal Tribunal as she would be persecuted if returned to Iran. Despite the Refugee Convention being written in 1951, certain countries have interpreted it to protect female refugees from specific abuses, such as forced marriages, highlighting it is possible to protect female refugees from this type of persecution. Nevertheless, despite the UK and other countries achieving great strides in human rights and acknowledging the specific abuses female refugees are subject to, it is becoming more apparent that more needs to be done. It is striking, that even post Shah and Islam UK, there is still no particular social group for women fleeing forced marriage, as the current Convention stands.  

One of the main challenges facing the protection of female refugees from forced marriages is the domestic law and customs of the countries where forced marriage is legal. It is particularly notable that women’s education levels are a high factor when it comes to the forced marriages of female refugees. Educated women are better able to recognise their experiences as abuse, while less educated women may accept it as normality. A study in 2008 highlighted urban and highly educated women in Lebanon were ‘somewhat less constrained’ by social customs and ‘would not be subject to forced marriage, and if she were, could evade it.’ Consequently, the education of female refugees is paramount in reducing the level of risk they may face of specific abuses.

In recent years, international organizations have paid increasing attention to a particular problem affecting female refugees, human trafficking. Female refugees need more international protection from human trafficking. While not all victims of trafficking are refugees, depending on the circumstances, many victims of human trafficking qualify for refugee status. Female refugees are at particular risk of being victims of human trafficking. This is due to many factors, including their vulnerable status, the losses they have experienced and their displacement geographically. According to the UNHCR, trafficking risks for female refugees are increasing worldwide. Under the current grounds of persecution of the Convention, protection for female refugees from human trafficking is non-existent, meaning female refugees must depend on the domestic laws of the country they are in. 

In times of conflict and chaos, female refugees are often pressured into work where they are exploited and abused. Prostitution is often one of the only ways female refugees can make money for their families. However, the voluntary nature of such work is questionable when there is no alternative source of income – and indeed exploitation of a position of vulnerability is recognised within the Palermo Protocol as a form of coercion. Individuals are at serious risk of falling into the hands of sex traffickers. This is compounded by the lack of protection for female refugees under the current grounds for persecution, forcing many female refugees into extremely dangerous situations

To conclude, at the time of its establishment, the 1951 Refugee Convention made great strides in human rights, but now, as the world changes, the Convention’s deliberate gender-blindness is an impediment, rather than an asset, to justice for female refugees. As illustrated above, it is possible for countries to interpret the Convention so that ‘particular social group’ extends to protection against specific abuses that only happen to female refugees, but this relies on interpretation. In my view, interpretation is not enough: protection for female refugees should be a codified right, not a privilege at the discretion of the member state’s interpretation. 

The current situation  leaves room for instability and uncertainty, and uncertainty gives rise in turn to grey areas where female refugees are protected in some countries and not in others. To reiterate the words of Charlesworth and Chaiton “The realities of women’s lives do not fit easily into the concepts and categories of international law”. Perhaps it is time that those concepts and categories are re-moulded to allow them to do so. An amended Refugee Convention is overdue, as the unique needs of female refugees must be protected, and the empowerment and the equality of females supported. 

Don’t be that employer

Legal Feminist tweeted a short thread starting like this the other day:  

It seems worth elaborating briefly in a blog, so here goes. 

The first point to make is that the allegation made by @MotherCecily is unverified: I don’t know who she is, or who her husband is, and I haven’t seen the email or the agenda. But it will serve anyway as an example of the kind of thing that an employer might do. 

It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.”  It looks pretty bad, doesn’t it? 

The memo doesn’t seem to have circulated very far yet. Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable. 

But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment. 

First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet). Bearing in mind the prevalence of active harassment of those who express gender critical views, there may be quite a few. 

Secondly, it’s likely to be pretty bullet-proof. If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind. 

Finally, connoisseurs of such things will admire the irony. If employment tribunals awarded points for style, being found liable for discrimination contained in your diversity training ought to get full marks. But if you’re an HR manager who’d rather not be awarded points for style (which an employment tribunal might possibly call “aggravated damages”), you should be careful not to expose staff to training of this nature. 

The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog),  or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular. 

Transgender Law: a practical guide?

In “A practical guide to Transgender Law” (Law Brief Publishing, 2021), Robin Moira White and Nicola Newbegin have written a short book of ambitious scope: in fewer than 300 pages, they take in subjects as varied as discrimination, asylum, data protection, education, prisons, family law and sport.

The first point to note is that the book lacks a consistent sense of purpose, wandering between summarising the law, setting out statutory and non-statutory guidance and policy material, charting the development of the law and social attitudes in this area, and legal analysis. Perhaps as a result, its structure is choppy and repetitious: it’s not clear, for instance, why the Equality Act 2010 and the Gender Recognition Act 2004 get chapters to themselves as well as separate treatment in chapters on associations, education, employment and sport; or why “Prisons” (Chapter 15) is not treated as part of “Criminal Justice” (Chapter 6). The book is poorly proof-read, with minor errors sprinkled throughout the text and one instance where a section of nearly a page and a half appears in two different places. 

The book’s defects of structure, clarity of purpose and editing might have been forgiven if the authors had been able to offer helpful insights on some of the undoubtedly tricky problems in this area. But the book is equally disappointing in almost all matters of substance. The chapter on data protection and confidentiality (Chapter 7) provides a competent summary of the law, as (for the most part) does Chapter 3 on the GRA; but the rest of the book suffers from a pervasive tendentiousness, coupled with legal analysis that is either weak or simply absent.

The first example comes before the book is even properly under way, in the terminology section at page xviii. The authors dismiss the binding judgment of the High Court in Corbett v Corbett [1970] 2 WLR 1306, apparently on the basis of the biologically illiterate claim that the existence of differences of sexual development undermine the distinctness of the categories “male” and “female”. This is unsupportable. Biological sex is an immutable and as a rule easily observable feature of human beings. In a small minority of those with certain rare DSDs, sex may be incorrectly observed at birth; but that fact no more undermines the male/female binary than the fact that individuals are occasionally prematurely pronounced dead undermines the alive/dead binary. As the Employment Appeal Tribunal has since pointed out in Forstater: “the position under the common law as to the immutability of sex remains the same; and it would be a matter for Parliament… to declare otherwise.” 

Discussing what “man” and “woman” mean in the EqA, the authors say this: 

“The EqA 2010 definition of ‘man’ is a male of any age and ‘woman’ is a female of any age’ (EqA s212). But without a definition of ‘male’ and ‘female’ this does not help. Is a trans male a male or a trans woman female? Is a trans woman something different from a woman? But a gay woman or a black woman are still women, why not a trans woman?” 

There’s a sleight of hand here – whether conscious or not. The argument plays on the words of the question-begging neologism “trans woman” to suggest that “trans” is simply an adjective qualifying the noun “woman”, and therefore a “trans woman” is just another kind of woman. It does not admit to the true nature of what the authors are proposing, which is a radical extension of the meaning of the word “woman” – well beyond the natural meaning of a concept that is familiar in every language and has been for as long as humans have used speech – to include those men who think of themselves as women. For anyone who does not accept that trans-identifying males are women, the proposed parallel with “black woman” or “gay woman” will land badly. (For readers less familiar with these debates, it may be helpful to spell out that the term “trans woman” is frequently claimed not only by those who have taken all available surgical, hormonal and cosmetic steps to look as much like women as it is possible for them to do, but also by others who retain fully intact male genitals and sometimes even a beard, relying on nothing more than clothes and cosmetics to signal their essential womanhood.)

The authors also seek to construct an uncertainty about whether a person’s legal sex might change in the absence of a gender recognition certificate. This is fanciful. Biological sex can’t change, and the common law recognises that; and the mechanism for changing legal sex set out in the GRA is self-evidently exhaustive. 

In the terminology section, at pp. xix-xxi, the authors quote at length from the speeches in the House of Lords in Chief Constable of West Yorkshire Police v A (no.2) [2005] 1 AC 51, acknowledging that Baroness Hale anticipated that the GRA would resolve these questions; but then seem to give up on the daunting task of analysing, by reference to the words of the Act, whether and if so how it has done so, preferring instead a hand-waving assertion that the authors cannot believe that a trans-identifying male who has transitioned early enough never to have developed through male puberty can really be regarded as a man in law simply because he lacks a gender recognition certificate. It is not clear why they think this, or what aspect of their hypothetical case they think is crucial. They seem to set store both by the length of time for which an individual has “lived as” the opposite sex and the degree of success with which he can “pass”.

Whatever their thought processes, they are clearly wrong. The House of Lords in A and Parliament in the GRA chose different solutions to the problem of who should be treated as having changed sex, and what the consequences should be when they were. The House of Lords chose exacting conditions (a complete or all-but-complete cosmetic appearance of the opposite sex: in the words of Lord Bingham, being “virtually and for all practical purposes indistinguishable”), but far-reaching consequences where those conditions were met. Parliament chose a much less demanding standard for issuing a gender recognition certificate, but also limited the effect of a GRC once granted. It is of course Parliament’s choice that is now the law. 

Commenting in Chapter 3 (Gender Recognition Act 2004) on section 9 of the GRA, the authors say: 

“[A]s far as the law is concerned, the holder of the certificate now has the gender stated on that certificate “for all purposes”. This provision dealt admirably with the original focus of the Act: pensions and the right to marry. It is still important in a number of areas including the fields of data protection and prisons (see relevant specialist chapters). The GRA itself contains a number of exceptions. The position in respect of the Equality Act brought into law only 6 years later is far from certain.”

This passage could be clearer, but the implication seems to be that when the EqA was passed, its interaction with the GRA was somehow overlooked, or inadequately worked out. Nothing could be further from the truth: the expression “Gender Recognition Act” occurs 14 times in the EqA and its explanatory notes, and the expression “gender reassignment” no fewer than 95 times. The relationship between the EqA and the GRA is both deliberate and intricate: no doubt there are some unintended consequences and difficult questions, but – particularly given that much of the relevant phraseology of the EqA is little altered since the Sex Discrimination Act 1975 – what is clear beyond any sensible doubt is that for the purposes of the EqA, “sex” means biological sex, except where modified for legal purposes by the operation of section 9 of the GRA. 

At the end of Chapter 6 (Criminal Justice), the authors deal very briefly with searching under the Police and Criminal Evidence Act 1984. They quote from the Metropolitan Police Service’s “Transgender Policy” which purports to allow trans-identifying officers to conduct searches of suspects of the opposite sex, but notes that since non-binary identities are not covered under the Equality Act, officers and staff who identify as non-binary will not be permitted to search the opposite sex. The authors’ legal analysis of this policy is confined to the single sentence, “Authors’ note: the last answer may need to be revised in the light of Taylor v Jaguar Land Rover.” 

This is inadequate. The policy quoted is unlawful insofar as it applies to intimate searches, since PACE s55(7) requires that “A constable may not carry out an intimate search of a person of the opposite sex.” The authors claim elsewhere in the book that, following Taylor v Jaguar Land Rover 130447/2018, “those with more complex gender identities are now held to be within the protected characteristic of gender reassignment.” There are a number of problems with this statement. First, a decision of an employment tribunal has no weight as precedent, yet White and Newbegin treat Taylor as if it were a binding authority. Secondly, having decided to undergo a process of reassignment and announced that decision, Taylor undoubtedly had the protected characteristic of gender reassignment on a perfectly conventional understanding of s7; so even if the judgment were capable in principle of being binding, it would not have the effect claimed. (Readers wishing to gain a fuller understanding of Taylor are directed to Maya Forstater’s excellent blog on the subject.) Third, and for the Criminal Justice chapter most pertinently, the fact that an individual has the protected characteristic of gender reassignment for the purposes of the EqA does not change their biological or legal sex. The authors do not explain how the EqA duty not to discriminate on grounds of gender reassignment could be thought to override the same-sex searching requirement in PACE. 

In Chapter 8 (Education), the authors say this about toilets in schools: 

Reliance is placed on the School Premises (England) Regulations (2012)… which specify the provision of separate toilet facilities for boys and girls over the age of 8 except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one person at a time. However, there is no definition of sex in the Regulations and whether a trans pupil can lawfully be excluded from the facilities which match their acquired gender is, as yet, untested… the question whether exclusion of a trans girls [sic] from toilets would be a proportionate means of a achieving [sic] a legitimate aim is untested in law. 

Sex is not defined in the Regulations; nor (more relevantly) are the related terms “boys” or “girls”. But these are ordinary English words that require no definition. A child cannot be granted a GRC, so there are no ticklish questions about “legal sex” and “biological sex” to get into here: the child’s sex is and can only be his or her biological sex. If a trans-identifying boy (a “trans girl” in the authors’ preferred terminology) is admitted to the girls’ toilets, those toilets are no longer separate facilities for girls: they have become mixed sex. The Regulations require separate facilities, so boys (however they identify) must be excluded from the girls’ toilets, and girls (however they identify) from the boys’. Moreover, it is not clear what the authors think is the relevance of the question whether exclusion of a trans-identifying boy from the girls’ toilets would be a proportionate means of achieving a legitimate aim: no such test is identified in the Regulations, which simply make separate facilities mandatory.

Chapter 12 is devoted to the question whether gender critical views are a protected belief for the purposes of the EqA. It seems odd that the authors thought this narrow question merited a whole chapter to itself; but odder still, given that they did, that they did not think it worth waiting for the judgment of the Employment Appeal in Forstater v CGD Europe [2021] 6 WLUK 104, which at the time of writing they note was expected within a few weeks. The predictable result is that the entirety of their detailed consideration of the first instance judgment is already out of date.

At Chapter 15 (Prisons), the authors discuss the case of R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin). The case was about the extent to which a man who was in prison for his part in the extended torture and murder of his wife was entitled to be supplied in prison with items said to be necessary to his recently-conceived desire to “live as a woman”. The judgment notes at ¶19 that he did not appear to have a diagnosis of dysphoria, and was reported to be “saying different things to different people”.

​​White and Newbegin summarise the essential facts and the outcome like this: 

“Whilst it was recognised by the court that there was no question of her being required “to live as a man”, she was housed in a male prison and was refused items such as a wig (she was bald) and tights. The decision to refuse these items on the basis of increased risk in the prison community was upheld. The prison service said that tights could be used as a ligature and were easily concealed. A wig, it was said could be used in an escape attempt. The judge recognised the sensitivity of the position but upheld the decisions taken.”

Reading that, one might think the prisoner’s requests were modest and reasonable. But the authors’ “such as” turns out to be capacious. At paragraphs 27 and 47 respectively, the judgment describes more fully the problem and the nature of the risks: 

“The particular problem asserted by the claimant is her access to prosthetic items – wigs, breasts and vaginas.”

“In relation to tights there is also a demonstrable security concern. The same applies to intimate prosthetics. With tights it is obvious they can be used for escape purposes and other dangerous illegitimate use. With intimate prosthetics the real issue of hiding items is pronounced. In order to alleviate this, the governor would have to institute regular and repeated intimate searches.

If the authors’ sanitising account of the facts of Green is disquieting, even more so is their failure to mention a key part of the judge’s reasoning in the case. One of the issues was whether Green had suffered discrimination on grounds of gender reassignment, and there was argument about the characteristics of the comparator that should be used to test that question: should the comparator be a man who lacked the protected characteristic of gender reassignment, or a woman who lacked that protected characteristic? The judge did not think that a difficult question. As he put it (at paragraph 68): 

Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland… I find it impossible to see how a female prisoner can be regarded as the appropriate comparator.The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male.

This comparator question is of crucial importance to many of the contentious questions relating to the treatment of trans-identifying people. Both of the authors contributed to the Employment Lawyers Association’s response to the 2018 Government consultation on reform of the GRA, which (answering question 13 on single-sex and separate-sex services) describes the comparator question as going to the heart of the wider ideological debate about the nature of sex and gender. Their failure to discuss this aspect of Green is hard to comprehend.

Examples abound of analysis that is weak, tendentious or entirely missing, but one further instance is worth particular attention. At Chapter 9 (Employment), the authors comment on an example of a possible occupational requirement, given in the Explanatory Note to the EqA, to be a woman and not a transsexual person, even with a GRC, in order to work with victims of rape as a counsellor. They say this: 

[C]are should be taken to note the word “might”. For example, the situation may well depend on how well the trans person “passes”: if it is not possible to tell by looking at / listening to a trans woman that she is transgender then it is far less likely that the genuine occupational requirement would apply as compared with, say, a trans woman who does not pass as well and in a number of respects still looks male. 

The idea that “passing” is something that can or should ever be judged as a condition for employment is fraught with difficulty and embarrassment, both for anyone called upon to make such an invidious judgement, and for the trans person concerned. But even if that difficulty could be overcome, it doesn’t seem fanciful to think that the ability of a rape victim to detect when she is in the presence of a man may be heightened: her perception might not coincide with that of the manager. But more seriously than either of those objections, it should be self-evident that a rape victim who wishes to speak to a female counsellor should be granted that wish without question, and without any threat of subterfuge. It is difficult to imagine a more heartless message to convey to a rape victim than “The person you are sitting with, alone in a room, talking about your experience of rape, will either be a woman, or else a man who passes so well as female that you won’t be able to tell.”

Conclusion 

If the objective of the book was to increase understanding of the law in this area, it must be judged an abject failure. Even a reader with little prior knowledge will be struck by the regularity with which the authors simply give up on the task of analysis: 

“The law is, at present, hopelessly confused… Society (and lawyers and legislators) still have much thinking to do” (p.xxi). 

“The position in respect of the Equality Act… is far from certain” (p.34). 

“Legislation is urgently required to clarify these provisions otherwise case law will be needed to fill the gap” (p.55). 

“There does not appear to be case law on the point…” p.58.

“Whether a school should intervene to act in a way apparently inconsistent with a pupil expressing their gender identity would appear to be legally untested” (p.101). 

“Whether treatment of trans pupils such as excluding them from dormitory-style accommodation would be a proportionate means of achieving a legitimate aim remains untested” (p.102).

“…. these provisions provide no guidance” (p.209).

“… this will remain a controversial area in which further legal challenges may be anticipated.” 

In some of these cases, there is genuine reason for uncertainty; in others, the law is clear enough, and the uncertainty imaginary. In both cases, readers looking for assistance will be disappointed by the authors’ repeated unwillingness even to attempt to provide it. If a pair of guides on a difficult mountain path were as consistently flummoxed as the authors of this book, their clients would be saying their prayers. In truth, there is little of either guidance or practical utility in White and Newbegin’s “practical guide”.

I am (even) more than usually grateful to the several “critical friends” from the Legal Feminist collective – and others beyond: you know who you are –  whose characteristically vigorous and forthright comments and editing and have improved this review beyond recognition from its first draft. 

I Know It When I See It

Legal Feminist welcomes feminist blog posts from practising lawyers. In this post, guest blogger and paralegal Ffion Lloyd writes about the shocking growth of the incel movement and suggests the time has come to treat it as a terrorist movement.

We all know the phrase, ‘I know it when I see it’, when you may struggle to describe or pinpoint what ‘it’ exactly is, however, we all feel it and know where ‘its’ boundaries are. Schmid and Jongman described terrorism as acts committed for “idiosyncratic, criminal, or political reasons.” This definition includes mass attacks by non-ideological psychotics. The Crown Prosecution Service describes terrorism as “the use or threat of action… designed to influence any international government organisation or to intimidate the public” which is “for the purpose of advancing a political, religious, racial or ideological cause” and cites examples as including “serious violence against a person” “endangering a person’s life” and “creating a serious risk to the health or safety of the public or a section of the public”.

Despite these recognised and accepted definitions, there remain a number of organisations and groups in the UK which blatantly pose a threat to the safety and security of society and yet are not recognised by the authorities as terrorist or as holding terrorist ideologies. 

On Thursday 12th August 2021 Britain witnessed its worst mass shooting in nearly a decade. A country that, since the Dunblane shootings, has successfully avoided the horror of mass shootings. We have prided ourselves on being the complete opposite to the USA when it comes to gun control.  The UK has strict and rigorously enforced gun control laws; anyone caught in possession of an illegal firearm will face a mandatory minimum prison sentence of seven years.

But in spite of our tight gun control, two women, two men and a three-year-old girl were fatally shot in 12 minutes by a 22-year-old, self-identified ‘incel’. In the aftermath of this shocking event, use of the phrase “incel” had the media frantically seeking to explain what this right-wing, misogynistic ideology stands for. However, this is not a new term let alone a new group. A January 2020 report by the Texas Department of Public Safety warned that incels were an “emerging domestic terrorism threat” that “could soon match, or potentially eclipse, the level of lethalness demonstrated by other domestic terrorism types“.

Alongside that report, a 2020 paper, Studies in Conflict & Terrorism, published by Bruce Hoffman noted that the incel movement’s “core ethos entails the subjugation and repression of a group and its violence is designed to have far-reaching societal effects” and concluded that “the violent manifestations of the ideology pose a new terrorism threat, which should not be dismissed or ignored by domestic law enforcement agencies“. Yet despite these warnings, Jake Davison, a 22-year-old guy from Plymouth, was frequently and freely able to post YouTube videos, actively discussing his life failures and angrily complaining that the root cause of his insecurities and lack of sexual experience were the fault of women. More specifically, the lack of interest women had in him.

The Incel movement is an inherently misogynistic internet subculture that has reportedly led to over 61 homicide deaths since its founding. The term “involuntary celibate” arose in the 1990s and originally had no violent connotation. However over the last two decades, the incel community became increasingly misogynistic, blaming women and glorifying rape and violence against women.  Then in 2014, Elliot Rodger murdered 6 people, and wounded 14 others, as part of what he called a “Day of Retribution” rooted in the frightening notion that women were fundamentally flawed and deserved death. Rodger went on to write his lengthy 133-page manifesto in which he rationalises the massacre of women. In his “ultimate and perfect ideology of… a fair and pure world,” all women should be “quarantined” in “concentration camps,” where he could “gleefully watch them die,” though some would be kept alive and artificially inseminated to perpetuate humanity. Following this event, pro-violent, internet subcultures have continued to grow and have resulted in several murders and attacks by men propagating this terrifying ideology. 

Despite this, as the law currently stands in the UK incel ideologies are seemingly not regarded a dangerous enough to be classed as terrorism. In the past, extremist groups which have sought to overthrow the social order,  the IRA, the LTTE and most recently ISIS, have been deemed terrorist organisations. Why is the incel movement any different?  

ISIS provides a good case in point – it is recognised as representing a direct threat to the security of a country and its interests; the incel movement undermines democratic norms and values of equality and shares a number of similarities. They are male dominated, historically anti-women and heavily rely on the internet and online forums as a primary communication tool. While anti-women views existed long before the internet, subsections of the internet have accelerated their spread, expanded their reach and fuelled their women hating content.

The nature of attacks, perpetrated by violent radicalized groups such as the incel movement and ISIS, have a very gendered dimension which is predominately virtual and largely comprises young males. How can it be that one an illegal terrorist organisation and the other simply frowned upon, when at their core, they have such fundamental similarities? Does the fact that ISIS is founded in a religious doctrine make it fundamentally more dangerous? It is very hard to see why that should be the case.  If that is the case, what is the difference? Are incels deemed less dangerous because they predominantly target women and not men? Does this somehow make them less of a threat to society? 

If so, this is naive, given incel perpetrators have clearly shown that their attacks also target men, who are deemed attractive and lucky in life (‘chads’). More to the point, the suggestion that hatred of women is somehow less of a threat is also a terrifying conclusion. Violent attacks on women in general have been all too frequent items in the news in recent years, from the shocking assassination of Jo Cox to the brutal murder of Sarah Everard. The murder of Sarah Everard led to an outpouring of concern about violence against women.  And yet despite those sentiments, society has not yet fully recognised the dangers posed by those who fundamentally hate women.  Incel related violence is explicitly aimed at instigating an overthrow of social order. 

Terrorism, I know it when I see it. When will the government? 

More on “misgendering”

The judgment of the EAT in the Forstater v CGD Europe & ors UKEAT/0105/20/JOJ is prefaced – quite unusually – with a list of things that it does not mean. There had been hyperbolic predictions from some quarters (including the Respondent’s counsel) about the dire consequences of a ruling in Ms Forstater’s favour, so the disclaimers weren’t wholly misplaced. But they were ripe for parody, and Twitter and Mumsnet didn’t shirk the task. The Guardian writer Oliver Burkeman started it: “It’s important to emphasize that the ruling does NOT give Maya Forstater the right to come round and steal your plasma screen tv,” and presently there was a long and helpful list of all the things the ruling didn’t give Maya Forstater the right to do, from tipping her seat back on a short-haul flight to Düsseldorf to wearing armour in the Houses of Parliament. 

The list given by the EAT is shorter, running to only four items, and more prosaic. To summarise: 

  • The EAT isn’t taking a position on “the transgender debate”. 
  • The judgment doesn’t mean anyone can “misgender” trans persons with impunity.
  • It doesn’t mean trans persons aren’t protected from harassment and discrimination under the EqA. 
  • It doesn’t mean employers and service providers won’t be able to provide a safe environment for trans persons.

The first item is self-evident: the EAT was not asked to give its own view on the merits of Ms Forstater’s belief, and it would have been irrelevant to its task (and very surprising) if it had done so. The third item on the list is scarcely less obvious: of course trans persons retain the protection of the EqA from discrimination and harassment, just like everyone else. 

The fourth item is that the judgment doesn’t mean that employers and service providers will be unable to provide a safe environment for trans persons. This is closely related to the third, and scarcely less obvious: trans persons are no different from anyone else in that they are protected from unlawful discrimination and harassment on grounds of any protected characteristic – that is the mechanism by which employers and service providers are required to provide them with a safe environment. Harassment for the purposes of the EqA is defined as conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether a claim of harassment is made out, it must take into account both the subjective perception of the person who feels harassed, and the objective question whether it is reasonable for him to feel that way; as well as “the other circumstances of the case”. 

“Misgendering”

It is the second item on the list I want to take a closer look at:

This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case

There were plenty of hot takes on Twitter to the effect that the EAT had ruled that “misgendering” was unlawful harassment; or that even if it hadn’t, that it was possible to infer from the judgment that “misgendering” in the workplace would amount to unlawful harassment in almost all imaginable circumstances. I dealt with one of the latter here

What the judgment actually says is just that it doesn’t say anything about the circumstances in which “misgendering” will amount to harassment. The EAT sets that out at a bit more length at ¶104: 

That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation.

That’s worth some unpacking. 

The Claimant [cannot] go about indiscriminately “misgendering” trans persons with impunity.

That’s the bit that looks most like an assertion that “misgendering” is prohibited. But it needs to be read together with the next sentence: 

The Claimant is subject to the same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. 

The first thing to note is that those prohibitions are quite limited and specific. The EqA does not place a general obligation on all of us not to discriminate against – or even victimise or harass – others on grounds of protected characteristics in our daily lives. It operates in defined spheres: the workplace; provision of goods, services and public functions; education; and associations. So if your friend asks you to use zie/zir to refer to him from now on, and you decline, you may lose your friend, but he’s not entitled to sue you under the EqA for any variety of discrimination for “misgendering” him. If a celebrity who is obviously male announces publicly that he wishes to be referred to as a woman from now on, and you write about him using grammatically correct pronouns on Facebook or on your blog or in a comment piece in a national newspaper, he doesn’t have a claim against you under the EqA either: you’re not his employer, or providing him with a service, or running an educational establishment at which he is a student or an association he belongs to or wants to join. 

If your friend asks his employer to require all his colleagues to use his neo-pronouns, and it says no, that may be another matter: your friend’s employer is bound by the EqA in its dealings with him, so he could at any rate frame an intelligible claim against it. And if you work for the same employer as your friend, and you refuse to use his neo-pronouns in the workplace, you could be personally liable under the EqA if a tribunal decided that your conduct amounted to harassment. 

The rest of the EAT’s ¶104 just says that “misgendering” may sometimes be harassment, but that whether or not it is in any given case will depend on the surrounding circumstances. 

I want to provide some pointers to the circumstances in which I think that “misgendering” might – and might not – be regarded as harassment under the EqA. I’m going to do that by examining a series of scenarios (some of which appeared without analysis in my previous blog on the subject), and saying briefly which side of the line I think they fall, and why. But before I do that, a short observation about the word “misgender”, and the manner in which the EAT uses it in its judgment in Forstater

Quotation marks in the EAT’s judgment

 The word (including “misgendered” and “misgendering”) appears 14 times in the judgment (leaving aside its appearance in direct quotes from the employment tribunal’s judgment), in the following distribution: 

“misgender” (double quotation marks): 5

‘misgender’ (single quotation marks): 2

misgender (no quotation marks): 7 

There are also several occasions – notably at ¶90 – where instead of speaking of “misgendering”, the EAT refers more neutrally to a failure to use preferred pronouns. 

“Misgender” means “to gender wrongly”; its use to refer to a refusal to bend the rules of grammar on the request of a trans person is tendentious, to put it mildly. I infer from the EAT’s use of quotation marks that – whether instinctively or as a matter of deliberate calculation I cannot guess – it was disinclined to accept that tendentious implication uncritically. That may be a straw in the wind as to the EAT’s future treatment of complaints about pronouns.

Is it reasonable to insist your colleagues use your preferred pronouns?

One final preliminary point. The EAT in Forstater deliberately limited what could be inferred from its judgment, preferring to leave wider questions about “misgendering” for another day. In particular, it did not express a view on how reasonable it was – or in what circumstances it might be reasonable – for an employee to demand that his colleagues use language in referring to him that is both grammatically incorrect and psychologically unnatural. 

My view on this is that such a demand will rarely, if ever, be reasonable. 

I want to pause here, because what I have just written may strike some as shocking or heretical. So let me say it again, with greater emphasis. I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them. I don’t think anyone is entitled to exercise that kind of detailed control over other people’s speech, or make that kind of incursion into other people’s freedom of expression. I think it is truly amazing that we have arrived at a point where pointing this out may be widely regarded as a sign of bigotry. And yet, there is no natural limit to the extent of this power-grab, if once we accede to it. Some of the examples that follow demonstrate that. 

I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them.

Some scenarios 

I’m going to recycle some of the scenarios from my previous post on misgendering, as well as adding a few more. The purpose of the previous post was to demonstrate that it was too simplistic to claim that “misgendering” a colleague in the workplace would always be harassment, so in some cases I just offered them without analysis as examples of situations in which the answer wasn’t obvious. This time I’ll say what I think the answer is in each case. 

In each case John/Jen (referred to as “J”) is the trans employee, and Liz (L) is his colleague. J, who is married, makes his announcement on his first day at the office – the sales department of Zeitghost plc, an IT firm – at the staff meeting at which he is introduced to his colleagues. He’s in smart-casual masculine dress that day, but he explains that from tomorrow he will be consistently wearing women’s clothing, and hopes to embark on a process of medical transition over the coming months. He wants to be known as Jen. He mentions that his marriage is still happy, and his wife is supportive. A male colleague who has always had a friendly, jokey relationship with J asks, “Does this mean you’re a lesbian?” and J says “I suppose I must be.”

Scenario 1 

L is a Quaker. She says her commitment to the truth as she understands it is central to her belief, and although she is perfectly content to use J’s new name, she is not able in conscience to use grammatically inaccurate pronouns. She says she will do her best to accommodate J by rephrasing anything she says about him to avoid using pronouns at all where she reasonably can, but she warns that this will be easier in writing than in speech. J complains that by refusing to use his preferred pronouns, L is harassing him. 

Comment

L is entitled not to suffer discrimination on grounds of her Quaker beliefs. J is entitled not to suffer conduct by colleagues that has the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether conduct amounts to harassment of J, it must take into account both J’s perception and whether it is reasonable for the conduct in question to have the effect of violating his dignity (etc.). L’s entitlement not to suffer discrimination on grounds of her beliefs must be relevant to the analysis of whether it is reasonable for her conduct to have that effect. 

My view is that J’s expectation – that his preference to be referred to using female pronouns should trump L’s right not to be forced to use language in a way she regards as untruthful – is unreasonable.  He may, subjectively, feel harassed; but I think the extent of his proposed incursion into L’s rights means that the answer to the question whether it is reasonable for him to feel harassed is considered should be an unequivocal “no”.  Note, though, that although this is my confident view of the correct interpretation of the EqA, it can’t be assumed that an employment tribunal would necessarily agree. On balance, I think on these facts L would probably prevail in the end, but it could well require an appeal.

Scenario 2

L has gender-critical views, but she doesn’t feel confident to express them openly in the workplace. She says nothing when J makes his announcement, but in the months that follow, she avoids using any pronouns to refer to him. Mostly, she manages that quite smoothly, but occasionally it makes her sound a bit stilted. 

After a few months, J notices that L is avoiding using any pronouns to refer to him. He raises a grievance, saying that this shows that she doesn’t accept him as a woman. He says this has the effect of creating a degrading and humiliating environment for him. 

Comment 

In this scenario, it is not enough for J that L avoids using masculine pronouns for him: he is aggrieved by her refusal to use feminine pronouns. 

This scenario seems to me the one most likely to arise in real life. Most people with gender-critical views will not be seeking to pick a fight with a trans-identifying colleague; but they may feel quite strongly about their own entitlement to draw a line short of active assent to a belief system which they reject. It may feel to them as if adherents to the dominant belief system in their workplace are demanding from them a humiliating gesture of submission. 

I think facts similar to these are likely to give rise to bitterly fought discrimination cases in the employment tribunals in the months and years to come. I can’t offer HR departments much comfort, either: if they back L, J may sue; but if they back J, L may sue. J may have the enthusiastic support of his trade union, which L will probably lack; then again, L, lacking union support, may be driven to crowd-fund for her legal fees, adding a lot of adverse publicity to the employer’s woes. On balance, backing L is probably the more prudent course for employers, as well as being the right thing to do.

Scenario 3

L has gender-critical views, which are well known to her colleagues. When J makes his announcement, she says “I have no wish to offend you, and I’m happy to call you Jen if that’s what you would like. But I am not prepared to refer to you using female pronouns, because I don’t want to signify assent to a belief system I don’t accept.” 

Comment 

My view is that L is within her rights in this scenario, too, but I don’t feel any confidence that a tribunal would agree. This, too, is the stuff of test cases. 

Scenario 4

L is on the autistic spectrum. She is confused and upset by J’s insistence that he is now a woman called Jen, and being required to use what she thinks are the wrong name and pronouns for J causes her intense distress. 

Comment 

I think this case is clearer. The analysis is very similar to the case where L is a Quaker. J’s demand is unreasonable, and L’s inability or refusal to use his preferred pronouns cannot reasonably be characterised as harassment. If L is disabled within the meaning of the EqA, any attempt to force her to comply with J’s demands is likely to be disability discrimination. 

Scenario 5

L is a child-abuse survivor. When she was ten, her abuser, who was in his mid-20s, groomed her by saying that he was really a teenager in his heart – he’d always been lonely as a child and just wanted another child to play with. L believed him, and at first she liked him and felt a bit sorry for him. He was obsessed with Harry Potter, just like her, and they’d played make-believe games together. L is a lesbian. 

On hearing J say that he supposes he is a lesbian, L suffers a severe PTSD reaction. She goes off sick for a couple of weeks. Her fit note just says “stress”, and when she returns to work she conducts herself as in variation 2: she ducks the whole issue in J’s presence, but refers to him by grammatically accurate pronouns in his absence, and it gets back to him. 

J complains of harassment, and HR calls L in for a meeting to explain herself. L breaks down in tears and explains what lay behind her reaction to J’s announcement. She says she has been horrified by make-believe games ever since being abused as a child. She says that she has no wish to upset J, and she would never describe his transition to his face as “make-believe,” but in truth that is how she experiences it. She says if the employer insists she has to refer to J using female pronouns, she will have no option but to resign. 

Comment

This is a somewhat more difficult situation for HR to deal with, because although J’s demand is grossly unreasonable as applied to L, they can’t explain to J why that is so without disclosing highly sensitive confidential information about L. 

My advice to Zeitghost in this situation would be that they should apologise to L, and tell J that he is at liberty to think of himself and express himself how he chooses, but he is not entitled to require his colleagues to use his preferred pronouns. If J brings an employment tribunal claim and they want to explain the full circumstances that led to their decision, they will need to ask the tribunal for an anonymity order to protect L’s privacy. 

Scenario 6

This time, J has announced that he is non-binary, and his pronouns are zie and zir. 

L says she’s busy at work and in her personal life, and she has no intention of learning a load of made-up grammar in order to refer to J. 

Comment 

I think J’s demand is unreasonable, and L’s response – even if the grammar isn’t actually terribly complicated, and “zie” and “zir” are just to be swapped in for “he” and “him” – is forgivably short. Again, though, I am not confident that in the current climate a tribunal would necessarily agree. 

Scenario 7

This time, J has announced that he has a complex non-binary identity. He says his pronouns are are “zoi, zer, zin, zim” in the vocative, nominative, accusative and dative cases, respectively; and his possessive adjective is “zein/zoiner” in the third person and “zoir” when addressing him. He passes a short handout around explaining the grammar. (Some of his colleagues are relieved to learn that his possessive adjectives are required to agree only in number, but not also in gender, with the noun to which it refers.)

L’s response is as above. 

Comment 

If you didn’t agree with me on the zie/zir scenario, what about J’s more complicated demands in this one? Do you think it’s ok for zin to require zoiner colleagues to grapple with zein invented grammar? And if not, where exactly do you draw the line? 

Scenario 8

When J makes his announcement, L says that she holds gender-critical beliefs, and is not prepared to pander to his delusions. She makes a point of calling him “John,” and referring to him using male pronouns when referring to him in meetings, whether in his presence or not, and in emails to the team. She says things like “Just like a man!” any time he does anything that she regards as stereotypically male behaviour, and frequently talks of his “male privilege.”

Comment

This is what harassment looks like. L is going out of her way to cause J distress and humiliation. Her employer must put a stop to her behaviour at once.

The Protection From Harassment Act 1997

Finally, it’s worth noting that in Forstater, the EAT is referring only to harassment as a form of discrimination under the EqA. There is also an offence, and a civil wrong, of harassment under the Protection From Harassment Act 1997. No doubt “misgendering” could be performed in a manner that would give rise to liability under the PFHA. Detailed comment on what that would involve is a matter for a separate blog; for now it’s sufficient to comment that the threshold is high: the ordinary annoyances, affronts and upsets of everyday life will not cross it.

Conclusion 

“Misgendering” is a concept that offers the employers of trans-identifying people nothing but trouble, from all sides. Pronouns are a part of language that we normally use almost entirely unconsciously and automatically. Putting them on permanent manual override imposes a cognitive cost – as is obvious from the regularity with which even committed allies stumble when trying to comply. It demands that attention be paid to something that we can normally do with no attention at all. I suggest above that the demand for ungrammatical pronouns is a power-grab, so perhaps the difficulty and the call on conscious attention is part of the point. 

“Neo-pronouns” are the perfect reductio ad absurdum: if a trans-identifying male is entitled to “she/her,” why isn’t a non-binary person entitled to “they/them”? And if “they/them”, why not “zie/zir” or “xe/xem/xyr”? And if a non-binary person is entitled to neo-pronouns that substitute one-for-one for English pronouns, what possible justification could there be for saying that they can’t borrow the more complex grammar of another language – or invent their own? What rational limit could there ever be to their entitlement to hijack their colleagues’ attention with awkward and unfamiliar grammar? 

Far from accepting that failure to use a trans-identifying individual’s preferred pronouns will always or normally amount to harassment, my view is that – unless done aggressively and with intent to harass – it almost never will. The very concept of “misgendering” is a menace: it should be carefully wrapped in quotation marks, and disposed of as hazardous waste. 

Is “misgendering” always harassment?

Human rights barrister Adam Wagner posed this question on Twitter the other day: 

At that point, Legal Feminist retired temporarily from the fray, promising a proper answer in a blog.  This is that blog. (Several different legal feminists tweet from Legal Feminist – it was me in that exchange. As always, these are my views and don’t purport to represent a collective or consensus view.) 

A preliminary point about my own use of language

I think the easiest and clearest way to go about answering Adam’s question is to consider it in the light of a set of variations on his bare facts, and ask which variations – if any – change the answer. But before I do that, I want to deal with a preliminary point about my own use of pronouns in this blog. Where real people are concerned, I will extend them the courtesy of using their preferred pronouns if I reasonably can. But fictional persons constructed for the purposes of argument have no claim on courtesy. So when I need pronouns for the characters in my examples, I will use grammatically accurate pronouns. It’s best to keep things real where possible.

The protected characteristics 

On the substance, the first thing to note is that there are likely to be at least three relevant protected characteristics in play here. Let’s call the transitioning employee John, and the gender-critical employee Liz. Let’s assume that John is a man who announces to colleagues that he now identifies as female, and wishes to be known as Jen. John/Jen (“J” in the rest of this blog) has the protected characteristic of gender reassignment. J may well hold protected beliefs about the nature of sex and gender; and Liz’s gender-critical beliefs are also protected. I’ll call Liz “L.” 

J is entitled not to suffer harassment on grounds of gender reassignment, or on grounds of protected beliefs about sex and gender. L is entitled not to suffer harassment on grounds of her gender-critical beliefs.

Theme 

Adam has provided the theme: 

“A person comes to work and tells colleagues that they wish going forward to be referred to in a different gender as they are starting the process of transitioning. A colleague refuses on the basis of GC beliefs and consistently and against their colleague’s wishes refers to them as their biological sex, to the increasing upset of the individual.” 

Variations 

Variation 1

J, who is married, makes his announcement on his first day at the office – the sales department of Zeitghost plc, an IT firm – at the staff meeting at which he is introduced to his colleagues. He’s in smart-casual masculine dress that day, but he explains that from tomorrow he will be consistently wearing women’s clothing, and hopes to embark on a process of medical transition over the coming months. He wants to be known as Jen. He mentions that his marriage is still happy, and his wife is supportive. A male colleague who has always had a friendly, jokey relationship with J asks, “Does this mean you’re a lesbian?” and J says “I suppose I must be.”  

L says that she holds gender-critical beliefs, and is not prepared to pander to J’s  delusions. She makes a point of calling him “John,” and referring to him using male pronouns when referring to him in meetings, whether in his presence or not, and in emails to the team.

Comment

L is going out of her way to treat J in a way that she has she knows will cause him distress. This is clearly harassment. 

Variation 2 

J makes the same announcement, but this time L says nothing. Except that she avoids addressing him by name, she treats him with irreproachable friendly courtesy to his face. Unsurprisingly, the need to use a pronoun to refer to him in his presence never arises; and in writing, she manages to steer round pronouns if she mentions him. But any time L needs to refer to J in a meeting or conversation with a colleague, she  uses male pronouns. This gets back to J, and he asks her to respect his preferred pronouns at all times. She refuses, saying that she has no wish to upset him, but she doesn’t accept that he is entitled to police the language she uses in his absence. 

Comment 

Is L’s failure to use J’s preferred pronouns conduct related to his gender reassignment that has the effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? Is J’s attempt to control L’s speech about him in his absence conduct relating to her gender-critical beliefs that has the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? 

If L is dismissed for what the company regards as her harassment of J, and complains to an employment tribunal of discrimination on grounds of her protected belief, what will happen? In the current climate, I don’t much fancy her chances – but that’s not the same thing as saying I think she ought to fail. As a matter of statutory interpretation and principle, and the proper balancing of conflicting rights, I think this one is genuinely tricky.

Variation 3 

In this variation, J and L have worked together in the sales department for 10 years. They have some history: L, who is a lesbian, rejected J’s sexual advances soon after he joined the department. He took the rejection badly, and was subsequently given a final warning and temporarily moved away from the sales department for homophobic bullying of her. He moved back to sales a couple of years ago; relations since then have been professional, but distant. 

J makes his announcement at a staff meeting that he is now Jen. He is wearing a men’s suit and tie as he has for the last 10 years, and he says nothing about medical transition, or about changing his style of dress. He does volunteer that he is a lesbian now, and almost imperceptibly winks at L. During the days and weeks that follow, nothing changes about J’s manner of dress or presentation, except that occasionally while at his desk he wears a shiny slide in his hair. He takes to using the ladies’ on the sales floor. L takes to using the ladies’ two floors up.

L’s conduct, and the rest of the story, are as in variation 2. 

Comment

I don’t think this one is even tricky.  I think it’s obvious who is the aggressor in this story, and it’s not L.

Sub-variation 3(a) 

The story is the same, except that this time J grows his hair a bit longer and takes to wearing make-up, and skirts or dresses; and as well as using the ladies’ on the sales floor, tries from time to time to engage L in conversation about clothes, hair and make-up. 

Comment 

I still don’t think this one is even tricky. J is harassing L. And – importantly – that conclusion doesn’t depend on an assumption that his transition isn’t “genuine.” It may be – it may not be. It may not be possible to say with any clarity what “genuine” would mean for this purpose. None of that matters: J’s objectively observed conduct towards L – including his attempt to control how she refers to him in his absence – is unwanted conduct that has the effect of violating her dignity and creating an intimidating, hostile (etc) environment for her. 

Variation 4 

The set-up and J’s announcement are as in variation 1: J is intending social and then medical transition. He is new to the department, and there’s no history between him and L. 

Sub-variation 4(a)

L is a Quaker. She says her commitment to the truth as she understands it is central to her belief, and although she is perfectly content to use J’s new name, she is not able in conscience to use grammatically inaccurate pronouns. 

Sub-variation 4(b)

L is on the autistic spectrum. She is confused and upset by J’s insistence that he is now a woman called Jen, and being required to use what she thinks are the wrong name and pronouns for him causes her intense distress. 

Sub-variation 4(c)

L is a child abuse survivor. When she was 10, her abuser, who was in his mid-twenties, groomed her by saying that he was really a teenager in his heart – he’d always been lonely as a child and just wanted another child to play with. L believed him, and at first she liked him and felt a bit sorry for him. He was obsessed with Harry Potter, just like her, and they’d played make-believe games together. L is a lesbian. 

On hearing J say that he supposes he is a lesbian, L suffers a severe PTSD reaction. She goes off sick  for a couple of weeks. Her fit note just says “stress,” and  when she returns to work, she conducts herself as in variation 2: she ducks the whole issue in J’s presence, but refers to him by grammatically accurate pronouns in his absence, and it gets back to him. 

J complains of harassment, and HR call L in for a meeting to explain herself. L breaks down in tears and explains what lay behind her reaction to J’s announcement. She says she has been horrified by make-believe games ever since being abused as a child. She says that she has no wish to upset J, and she would never describe his transition to his face as “make-believe,” but in truth that is how she experiences it. She says if they insist she has to refer to J using female pronouns, she will have no option but to resign. 

That’s enough variations

I’m not going to set out my views on all these variations individually here. I hope they are sufficient to make good my claim that “Yes, always” is an inadequate answer to the question posed by Adam.  

Comments are open. 

“You say objective, I say subjective”, what is the legal test? A blog about harassment and protected beliefs

Before and after the recent Forstater v CGD (2021)  case, there was a torrent of speculative commentary about what this meant both for trans people and gender critical people when it came to harassment under section 26 Equality Act 2010. 

On 27th April 2021, barrister Robin Moira White wrote in the Independent: 

It will mean, for example, that a person will be permitted to misgender a trans work colleague, indeed be legally protected if they do so. This puts employers in an impossible position where one employee is entitled to harass another, likely making the employer liable to the harassed employee for discrimination. It is both morally wrong and practically unworkable: employers will not be able to meet their duty of making workplaces safe to work in or public spaces safe to visit. “

Thankfully, this pessimistic prediction was proved wrong. The Employment Appeal Tribunal stressed that its judgment didn’t mean open season for people to harass trans people. It could have added “and the same goes for gender critical people.” 

In practice, what Forstater established was that both gender identity theory and gender critical feminism are protected as beliefs under s10 EA.

But what does that mean in practice regarding protection against harassment? Is “misgendering” (calling a transperson by a pronoun that signifies their biological sex) or calling someone a TERF (an offensive term to many)  or “bigot” unlawful harassment?

The classic and annoying lawyers’ answer… it depends! 

So how to decide if something is unlawful harassment?

First of all, some important caveats: I am talking about civil law, not criminal law. This isn’t about hate crime or other forms of harassment (say under the Protection from Harassment Act). 

This piece is not about whether it is right or wrong that something is considered unlawful harassment, but my best guess about what a court or Employment Tribunal will determine.

Context

This guidance is not relevant in all situations, only for those set out in the Equality Act. So it applies in work, education, political parties, larger membership organisations, some transport and some housing. It doesn’t apply between private people, say in the streets, unless one of them is working. That may be covered by other law, but is outside the scope of this blog. S29(8) states that, with regard to services to the public and public functions , neither the protected characteristics of religion and belief and sexual orientation are covered by the sections on harassment. ‘Harassing’ conduct related to religion or belief or sexual orientation which causes a detriment is covered by direct discrimination protection.

Which protected characteristics are covered?

Age, disability, race, sex, sexual orientation, gender reassignment and religion or belief are all protected against unlawful harassment. Marriage and civil partnership, and pregnancy and maternity, are not – although the latter is effectively covered against harassment via a different route in s17 and 18 Equality Act.

What does the law say ?

The Equality Act says the following:

26 Harassment

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”

So let’s break it down:

Unwanted conduct” means the person alleging harassment didn’t consent to it. It is aimed at avoiding liability for genuine give-and-take banter. This does not mean the sort of bad defence used by obvious harassers to seek to exclude insults,  but rather a hug between old friends, affection between consenting romantic partners, or a genuinely equal debate about politics in the canteen between colleagues, for example. 

Related to a protected characteristic” means you don’t have to have that characteristic to be harassed; but there must be a link between the words, actions etc and the protected characteristic. This sort of harassment isn’t about generic bullying.

Conduct has the purpose or effect”. If the evidence shows the alleged harasser intended for the words or conduct to be harassing (usually determined as such because it is obvious for those words or conduct were the sort purposefully used to harass), that is then immediately proved.

If, instead, it is argued that, whether or not it was intended, the effect was harassing, then there is a further test in s26(4) Equality Act, as follows:

“(4) In deciding whether conduct has the effect referred to, each of the following must be taken into account—

(a)the perception of B [person alleging harassment];

(b)the other circumstances of the case;

(c)whether it is reasonable for the conduct to have that effect.”

In legal terms this is known as an objective, subjective test. The test is not just whether the claimant perceived harassment, but whether that is a reasonable perception. A person who is frequently late to work may feel harassed by their boss reminding them not to be late on consecutive days, but it would not be reasonable for the reminders to amount to harassment. On the other hand, a person who has ADHD but is rarely late may well be harassed by an employer singling them out every evening with the words “Remember to be on time tomorrow – we know how ditzy you ADHDers are!” 

Violating dignity etc”

 This is exactly as described.. A court or tribunal needs to be satisfied that one of these descriptors could be applied to the situation evidenced.

In this piece I am not going to discuss s26(2) and (3), but it is worth noting the wording.

Very case specific

The result of this is that there are no glib equations to provide a bright line between conduct which is and is not harassment.   It really depends on context and framing.

In the context of the gender critical/gender identity context, my predictions are that: 

1.    Simply wearing a rainbow lanyard or putting one’s own preferred pronouns in your emails at work will not amount to harassing someone else;  but reporting someone to management who simply chooses not to, due to their beliefs, might well be harassment, 

2.    Setting up a Gender Critical or Gender Studies Research Group will likely not be an act of harassment; but campaigning against colleagues doing so might be harassment.

3.    Responding politely with one’s own views to a consultation about single sex or mixed gender facilities will not be harassment; indeed complaining to management about someone about their polite answer might well be. In the case of  Mbuyi v Newpark Childcare (2015), the Employment Tribual found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them. 

4.  Calling a colleague a TERF or intentionally misgendering them may well be held to be harassment. This is distinct from accidental misgendering, because the choice of pronoun is unknown to the speaker or because the speaker’s disability causes them not to remember such things;

5. Discussing politely and personally on social media whether the law should be changed to self ID is likely not to be, unless there is evidence of risk that this may lead to actual discrimination or harassment. Some support for this contention is given in two cases not directly relating to harassment but addressing the risk of that happening going forward. The Court of Appeal in Ngole v Sheffield University 2019 (a case concerning an evangelical Christian student social worker who was expelled from his university course after  expressing “Biblical views” on social media about homosexuality) said at para 129  “such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate” . It was notable that the University had accepted there was no evidence of intention to discriminate against gay people by Ngole. This is in contrast to Dr Mackereth in DWP v Mackereth (2019) who made it clear that his particular Christian belief meant that he did have an issue using pronouns inconsistent with the service user’s birth gender [sic]. It later became clear that it also extended to using a title or style of address, Mr, Mrs, Ms, Miss etc inconsistent with the service user’s birth gender [sic]. Dr Mackereth failed in his claim. Whilst it is under appeal, my view is that an appeal is unlikely to succeed.

5.   Proselyting to colleagues or service users about one’s gender critical or gender identity beliefs is likely to be harassment, in a similar way  to cases involving religious proselytising like Haye v Lewisham BC (2010) and Amachree v Wandsworth Borough Council (2010)) .

In each of these cases, the judge considered the facts carefully and conducted a balancing exercise of the basis of the facts to determine whether the employer had properly considered the employee’s right to manifest their belief. In those cases where the employer’s decision was upheld, it was generally because of the actual discriminatory impact of the employee’s actions on other people. 

These cases also demonstrate that similar issues can be dealt with through good employer practice and employees understand what is expected of them. An employer can have a policy which places limits on discussions about religion or belief at work, but any restrictions on freedom of speech or manifesting religion or belief must be proportionate to achieving aims like protecting the rights of others or the reputation of the employer. 

So if confronted with a complaint or grievance by someone alleging unlawful harassment, what sort of questions should you ask to determine if conduct amounts to harassment?

1.    What was the context in which the alleged conduct occurred?

2.    What does the complainant say happened?

3.    What evidence is there of the consequences of the conduct on the complainant or others?

4.    Why do they say it has the effect they claim? This goes to context. 

5.    What does the respondent  say happened?

6.    What are the relative power positions of the two?

7.    What do any witnesses say?

8.    Is there any other relevant evidence?

9.    What do your office policies say about social media use, and what is deemed misconduct or discriminatory behaviour? Do those policies balance freedom of speech, belief and private life with legitimate employer concerns like risk of harassment of colleagues or service users?

10. Have there been previous warnings against this conduct and when?

Having gathered all this information, and weighed up whose evidence is more credible, it is for the decision maker to decide whether each of the allegations are more likely than not to have happened, and if so, to determine sanction. 

Employers and service providers also need to check their policies and Equality and Diversity training materials to ensure there is no harassing content in there. 

In summary, there is no simple equation of  X=harassment but Y does not. Ultimately, it is a fact-specific exercise, where freedoms of speech and belief are balanced against the necessity to protect from harassment in the workplace.

Oxfam’s Problem with Rape, Sexual Violence and Abuse

Over the past few years Oxfam’s reputation in both the UK and abroad has suffered from a series of allegations of sexual harassment and abuse committed by Oxfam’s employees and agents in overseas emergency and long-term aid operations.  

Haiti

After the Haiti earthquake in 2010, Oxfam investigated, a year later, reports that Oxfam-employed workers in Haiti were sexually abusing local women and girls.  

Seven members of the Oxfam team in Haiti, including the head of the operation, Roland van Hauwermeiren, resigned or were sacked for sexual conduct in 2011.  Prostitutes, some possibly underage, had been entertained at Oxfam properties in Haiti.  

Oxfam carried out an investigation into the allegations and then did its best to cover the scandal up.  Oxfam concluded that the behaviour was not a case of exchanging ‘sex for aid’ and did not make the report public at the time because the prostitutes involved were not beneficiaries of aid.

In February 2018, Mr Goldring, then Leader of Oxfam, admitted the organisation had kept the 2011 scandal quiet but said it was not in anyone’s best interests to be describing the details of behaviour in a way that was ‘actually going to draw extreme attention to it’.  

Penny Mordaunt, then International Development Secretary, said in 2018:

What is so disturbing about Oxfam is that when this was reported to them, they completely failed to do the right thing.

Caroline Thomson, Oxfam’s Chair of Trustees in 2018, said the charity was determined to “learn” from what had happened.  

The Charity Commission, in its June 2019 report about Oxfam and Haiti, was damning of Oxfam’s behaviour.  It found that:

Oxfam GB’s approach to disclosure and reporting was marked, at times, by a desire to protect the charity’s reputation and donor relationships.

The Charity Commission imposed a 19 month statutory supervision of Oxfam, ending in February 2021, because of its failings in safeguarding in the past.  

Recent Allegations

There were further allegations made about Oxfam in April 2021, leading to a further suspension in Government funding for Oxfam. Those lessons didn’t appear to have been learned, yet.

In a Hole, Still Digging

In 2020 the Charity’s LGBT+ network wrote a training manual called ‘Learning about trans rights and inclusion’.

Instead of thinking that sexual violence is a problem that Oxfam ought to combat, this training document says:

Mainstream feminism centres on privileged white women and demands that ‘bad men’ be fired or imprisoned.

It is apparently the position of this “training” that reporting sexual violence to the Police legitimises criminal punishment, harming black and other marginalised people.

The Oxfam document says that white feminists need to ask themselves whether they are causing harm when they fight sexual violence:

White feminist tears deploy white woundedness, and the sympathy it generates, to hide the harms we perpetrate through white supremacy.

It appears to be the case that Oxfam is telling its employees that ‘white feminists’ who report rape and think that criminal punishment is a legitimate consequence for those who perpetrate physical and sexual violence against women are the problem rather than the solution.

Viewed through this distorting lens, the UK criminal justice’s record on rape appears to be good.  A  small minority of rapes are reported.  Not all of those reported are prosecuted, and conviction rates are extremely low.  

It has been a matter of concern to many involved with the criminal justice system for the past decade that rape is a crime that many men commit with impunity.

Blaming women for white supremacy if  they report rape and expect to be protected from it is a new low.

Women who have been raped are not white supremacists, or bigots, or seeking to punish men. 

The problem with rape is not women who report it and want justice.  The problem with rape is rapists. 

Such training could expose the organisation to claims by women who attend such training for unlawful harassment. It might well create an intimidating, hostile, degrading, humiliating or offensive environment for  such women employees  related to their sex and race, contrary to the Equality Act 2010.

Sadly, Oxfam now seeks to silence or shame women who have been raped or abused. 

Again.

Postscript

Note added 13th June 2021 – the conviction rate as a proportion of initial complaints of rape is strikingly low. It is important to remember, however, that once a decision has been made to prosecute a case, the conviction rate is no lower than other types of criminal offences. The prosecution rate is approx. 3.6%.

One of Legal Feminist’s criminal law specialists hopes to write about this important issue in the future.

https://www.bbc.co.uk/news/uk-48095118

Disagreeing with a Woman: Threats of Rape and Violence

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

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

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

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

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

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

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

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

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

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

Legal risks for Stonewall members

Why is Stonewall losing members?

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

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

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

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

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

Employment discrimination 

Single-sex toilets, etc

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

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

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

Expanded definition of ‘transphobia’

Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if Stonewall’s definition were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further: 

The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.

One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassignment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.  

But there are times when sex does matter, and at those times staff can’t simply be asked to ignore it. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans-identifying male has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.

Occupational requirements raise further problems. It is lawful to restrict certain jobs to one sex or the other, if being  either male or female is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. So, for example, a department store is undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if a store decides that those jobs can be given to trans-identifying males, then at least arguably they will have destroyed the legal basis on which they restricted them to women in the first place; a man might apply, and sue for discrimination if he is unsuccessful. There is in general no defence of justification for direct discrimination, so an employer that has deprived itself of the shelter of the occupational requirement provisions may find resisting the claim difficult. 

Workplace health and safety obligations

Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. The only trans people the law regards as having changed sex are those who have been granted a GRC. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.

Judicial review  

Public bodies are bound by the public sector equality duty at section 149 of the Equality Act, and are generally  required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which they make decisions, in the performance of their public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.  

In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court. 

A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance. Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s policy relating to trans-identifying males in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”  

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

These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be than the reality of how the law is.

In addition, there may be challenge to a public body’s membership of Stonewall’s schemes.  An application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage early this year, because the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review. But the judge doesn’t seem to have been shown material demonstrating the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. In truth, Stonewall’s interest in the activities of its Champions extends well beyond their role as employers, as is demonstrated by a wealth of material now in the public domain thanks to a FOIA campaign. The failure of one application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front. 

Some concrete examples 

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

  • A swimming pool opens its women-only sessions to trans-identifying males on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
  • A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans-identifying male wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the duration of a three-year undergraduate degree. The runner up sues for indirect discrimination on grounds of sex. 
  • A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a  new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision. 
  • A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans-identifying male who does not have a GRC. The NHS Trust’s policy is to treat trans-identifying males as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans-identifying male. The patient is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault. 
  • Maria is a social worker employed by a local authority that has committed itself wholeheartedly and visibly to the Stonewall schemes, with allyship training, rainbow lanyards, a procurement policy, active social media accounts, and a commitment to buy-in at all levels of the organisation. Maria’s caseload includes 3 girls in their early teens who have recently started to say that they identify as boys. One of them has asked her about how she can get ‘top surgery,’ and another has recently started binding. Maria’s managers tell her that she should refer these children to a local charity for trans youth. Maria looks into the charity, and is horrified by its ‘only affirm’ approach and its record of encouraging young people to transition. She asks her managers for guidance about alternative sources of support for these children which may explore with them the reasons for their sudden identification as trans, and whether it is possible to resolve their dysphoria or come to terms with their bodies as they are. Maria is disciplined for transphobia and for promoting conversion therapy. She brings a whistle-blowing claim against her employer. 
  • A firm of solicitors adopts writes the Stonewall definition of transphobia into its policies, and in its effort to rise up the Stonewall league table, it sets up a working group to draft a response to a government consultation on reform of the GRA. A female solicitor co-opted onto that working group raises a concerns that self-identification would undermine women’s rights, in the course of which she points out that a GRC doesn’t actually change a person’s sex: it only creates a legal fiction to that effect. A trans colleague complains, and the solicitor is put through a disciplinary procedure on a charge of gross misconduct in the form of harassing her colleague by expressing transphobic views. The disciplinary hearing exonerates her, but the process causes her to take time off work with stress and anxiety.  She complains to an employment tribunal of direct discrimination on grounds of her gender critical beliefs, and indirect sex discrimination.
  • Alex, a child with autism and learning disabilities, is being educated at a mainstream school where children routinely call their teachers “Sir” or “Miss.” His class teacher transitions during the course of the school year, leaving at the end of the autumn term as Mr Hawthorn and returning at the beginning of the spring term as Miss Hawthorn. Alex can’t understand the transition, and continues to call Ms Hawthorn “Sir.” He becomes confused and distressed when told that he must now say “Miss.” The school insists, and Alex’s distress increases until he starts refusing to go to school.  Alex sues (through his parents) for disability discrimination.
  • An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.  
  • A police officer who is a trans-identifying male is permitted to carry out a full search of a female detainee, which the detainee experiences as a terrifying and humiliating sexual assault. The police officer is prosecuted; superior officers face disciplinary charges; and the force faces a civil claim for breach of the detainee’s Article 3 right not to suffer humiliating or degrading treatment.
  • A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison. 
  • Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. Chris, a 17-year-old trans-identifying male wants to join the girls’ First Fifteen. Chris plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that  they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows Chris to play in a  school match between the girls’ First and Second Fifteens. A girl playing opposite Chris has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.  

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