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. 

Open letter to mySociety

Dear mySociety 

#DontSubmitToStonewall FOIA campaign 

We are the two groups involved in this campaign: it was launched by Naomi Cunningham on this blog in February, and analysis of the information and related policy work is now being undertaken by Sex Matters.   We have read your notice of 24 May responding to multiple complaints, and we are pleased that you have resisted the attempt to close down our collective public transparency project. Thank you for allowing the requests – and the substantial amount of information disclosed as a result – to remain on your site; and for staying true to your goal of helping citizens to understand how power is wielded, and acting together to challenge abuses of power. 

We read  your report Who Benefits From Civic Technology? highlighting the tendency of civic technology platforms to have predominantly male user bases. As you note, civic technologies lower the barrier to individuals engaging with  public bodies, but women face more barriers than men both offline and online. One of those barriers is that when women speak up in the public square they are often shouted down, piled on and unreasonably criticised and harassed. 

But we note that this report ignores sex, talking instead about “genders,”  and describes users as “identifying as Male” and “identifying as Female”. We don’t believe that being a man or a woman is simply a matter of identity; sex matters. We also note that the vast majority of the volunteers who run WhatDoTheyKnow are men.

The report says, “If platforms have disproportionate usage by one gender, there is potential for the gender associated with lower usage to be marginalised, or at the very least, have issues relevant or important to their gender marginalised.” It gives an “example” that women are more likely to push buggies or shopping trolleys and are concerned by broken pavements, whereas men are more concerned by potholes damaging their cars.

Women are more concerned by the replacement of sex by “gender identity” in public life, because it is predominantly women who are suffering the associated harms: the sexist reinforcement of gender norms, the impact on women’s safety, privacy and dignity, the destruction of women’s sport, and the threats to our ability to discuss the reality of women’s lives.

Our campaign provides a real life example, and a real world test of your commitment to sex equality. Some women ventured onto your site and organised a campaign to crowdsource related FOI requests. They used a memorable phrase (not unlike “Fix My Streets”) and the common internet device, the hashtag. They appear to have been targeted by multiple complaints aimed at silencing them, calling their legitimate FOI requests vexatious or hateful. The CEO of the powerful organisation about which they were concerned also complained about them publicly.

After careful consideration you found nothing that came close to “unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, discriminatory or profane” content” in the requests, nor were they vexatious. But rather than dismissing the coordinated complaints themselves as vexatious, you felt compelled to distance yourself from the female campaigners using the site and to remove their hashtag. That damaged our ability to coordinate organic community action; the core purpose of MySociety. 

Like you, we support the rights to equality and freedom from harassment for transgender people. We also support the rights of women not to be discriminated against based on their sex, to retain control of their bodily privacy and personal boundaries, and to have access to single-sex spaces and services. These are modest and reasonable demands, upheld and enshrined in the Equality Act 2010; and yet, because we defend them – and argue that the law as it now is should be correctly interpreted and applied – Stonewall and its fellow travellers seek to demonise us as hateful bigots. 

The intention behind the hashtag was to make it easy to find requests, and to allow participants to check whether a public authority had already been covered: we had no wish to inconvenience or hound organisations with repeated requests. 

We are indeed seeking to exert pressure on public bodies to reconsider their involvement in the Stonewall scheme  which we believe is inconsistent with the Nolan Principles of  selflessness, integrity, objectivity, accountability, openness, honesty and leadership (Sex Matters is calling for a public inquiry).

We are not seeking to do this through  making nuisance or vexatious requests – but  by using FOI to uncover the nature and extent of Stonewall’s influence, in order to promote scrutiny and debate. We believe this is wholly in line with the spirit of “What Do They Know” which exists to create collective knowledge and allow people to act together as citizens and communities empowered by access to information. Indeed the new “projects” feature is designed to do just that, and we hope to develop a campaign in future using it.

Rather than banning the use of hashtags, you could regard this as a helpful model for anyone else contemplating a similar collective FOI campaign. We hope that you will reinstate the hashtag, and reflect on how the dynamics that drive women out of the public square (both real and virtual) have been replicated on your platform by the vexatious complaints you received. Or, if you wish to operate a general prohibition on explicitly campaigning hashtags, you could substitute a more blandly informative hashtag; #Stonewall or #DealingsWithStonewall would do. 

We hope you will post a link to this response (or the response in full) on your website, and we would be happy to continue this discussion with you.

Yours faithfully 

Legal Feminist 

Sex Matters 

To Boldly Go – Why “going beyond the law” risks unlawful discrimination

Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.

The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An  activist’s dream. 

It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.  

However, this may be a trap for the unwary.

Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.

The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.

A group of academics and students from the University and elsewhere promptly responded in the form of an Open Letter to the Vice Chancellor. Some are from the Law School and others are human rights academics. It is attached here: https://twitter.com/SVPhillimore/status/1395429598331129861/photo/1

It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”

It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?

What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.

The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to  a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.

 The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged. 

Yet in equality law, recognising and balancing conflicts of rights is bread and butter practice. There is plenty of caselaw from Ladele v Islington BC https://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html to Lee v Ashers Bakery Case https://www.supremecourt.uk/cases/uksc-2017-0020.html .

Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “

Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.

As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.

Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”

I have previously  set out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.

There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers  to address long-standing underrepresentation was flawed and discriminated against a white man. 

So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.

AEA v EHRC: An Explanation

There has been a lot of interest in human rights circles about this case and its refusal of permission to judicially review the guidance relating to single sex services. We will look at what the case was about and what the refusal to allow permission might mean. We start by introducing the parties.

The Claimant 

The Claimant was Authentic Equity Alliance (“AEA), a community interest company established in 2018 to promote the personal and professional development of women and girls.

It was asking for permission for the courts to determine whether or not the EHRC’s  (below introduced as the Defendant) guidance relating to single sex services was lawful.

The Defendant

The Defendant to the claim was the Equality and Human Rights Commission, (EHRC) a statutory non-departmental public body established by the Equality Act 2006. On its website it advertises itself in the following terms:

As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

Its job is to provide guidance and expertise on equality law. To that end it has produced various codes and documents, including the Statutory Code of Practice for Services, Public Functions and Associations (“the Code”), which is the authoritative guide to interpretation of the Equality Act. 

Principal area of concern

AEA’s claim against the EHRC focused on one paragraph of the Code:

[Text: If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful when the exclusion is a proportionate means of achieving a legitimate aim.]

The Question of Lawfulness

The excerpt from the EHRC’s code which is copied out above  relates to  the Equality Act which allows service providers to run women only services (in Schedule 3). The Equality Act starts from a position of non-discrimination – the majority of services are available to everyone regardless of the nine protected characteristics – but accepts that there will be exceptions to this rule. Many of these are uncontroversial. It would be remarkable for someone to suggest that the Brownies are not entitled to discriminate on the basis of age, for example. 

Justified Women Only Services

Women only services are  exceptions to the starting point of non-discrimination and they are allowed under the conditions set out in Schedule 3. 

Broadly (we paraphrase and are not delving into technical details here)

Requirement 1

  • It is lawful, and will not be sex discrimination, to offer single or separate sex services (SSS) when this is a proportionate means of achieving a legitimate aim (Paragraph 26 – 27 )

Requirement 2

  • it is lawful, and will not be gender reassignment discrimination, to offer SSS, if the conduct in question is a proportionate means of achieving a legitimate aim. (Paragraph 28)  

The Substance of the Claim

The claim that was brought was, as the judge said at the end, complicated. A simplified – possibly oversimplified – summary is this:

Prescriptive Inclusion: The “Must” Approach

The Claimant, AEA, said that the phrase in the COP “should treat transsexual people according to the gender role in which they present” had wrongly led service providers to think that they must treat people according to the role in which they present. The Claimant provided evidence of various bodies which had adopted this position (as discussed below). 

The Defendant, EHRC, said that 

  • the COP said “should,” not “must,” 
  • that exceptions were available, and 
  • that the bodies which had adopted the “must” position had not expressly said that they had had regard to the COP. On that basis, the EHRC said that those bodies cannot have been led, or misled, by the COP, as none of them mentioned it. 

In fact, the EHRC said, a policy that said a service provider ‘must’ treat people according to the role in which they present would be “directly inconsistent” with the COP. 

In other words – other bodies may well be making this unlawful assertion, but it ain’t us guv.

The EHRC suggested that if other bodies had unlawful policies, these should be challenged directly, rather than holding EHRC itself responsible for bodies which should have followed its guidance, but either did not do so or misunderstood it – although naturally, the EHRC was not willing to concede that anyone had been misled in the absence of a smoking gun in the form of a policy which said “and we got this off the EHRC Codes Of Practice”. This, as we will come to shortly, is important. 

Extent of Justification Required 

The Claimant said that if a service provider meets the first requirement  (paragraphs 26-27 of schedule 3) and identifies that providing a woman only service is a ‘proportionate means of achieving a legitimate aim,’ it need not meet the second requirement (paragraph 28 of schedule 3) in order to lawfully provide a female-only or male-only service. 

The ‘proportionate means of achieving a legitimate aim’ having been once identified for the purposes of providing the service at all to the exclusion of persons of the opposite sex, there was no need to re-invent the wheel by identifying it again for the purposes of excluding a person of the opposite sex who also had the protected characteristic of gender reassignment. 

The EHRC said that this was wrong. It said that the AEA’s analysis didn’t account for those who had lived ‘for many years’ in an acquired role and yet had not, for whatever reason, applied for a GRC. It might be reasonable to include such a person notwithstanding that they were legally male, while it might be equally reasonable to exclude someone with a GRC who was legally female.

At this stage the parties’ arguments essentially converged. Both parties were arguing that a GRC was not relevant to the provision of a single sex service. 

Whether Appearance is a factor

The court examined the situation where a person using a woman only service is  “visually indistinguishable” from a woman and what this means in law. 

This phrase’s provenance is from a case which predates the Gender Recognition Act (“GRA”),  A v CC West Yorks. It was about  a transsexual MTF police officer who argued that she had suffered discrimination because she was refused employment, as she would not able to search female prisoners. [For the avoidance of doubt, the court held that Ms A “appeared in every respect to be a woman” – this is not a case in which Ms A asserted a gender identity at odds with appearance which would, nevertheless, today bring her within the scope of the Equality Act.  The case was brought because a prohibition on conducting searches would alert her colleagues to her trans status, which was not known to them. There is absolutely no suggestion that she was seeking inappropriate contact with female prisoners. ]

The House of Lords held that sex could include  “the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.” This was all decided under the provisio that the GRA would consider and address the issue of legal sex.  

Times have changed. The GRA is now in force. We no longer assume that gender reassignment means “a post-operative transsexual” and we now understand intimate searches to be something to which a person consents, not to which they object – albeit lack of consent may be no obstacle where the relevant PACE requirements are satisfied.

However personal appearance is  a factor which both parties acknowledged as relevant when providing a single sex service and applying the exceptions. In a situation satisfactory to nobody, personal appearance is relevant when assessing whether excluding a transwoman from a woman only service is a proportionate means of achieving a legitimate aim. 

The decision

The Judge decided that  AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His  job was not to decide what the correct interpretation of the law was at this stage. All he had to do was decide if AEA’s claim was “arguable” – that is, was it arguable that the EHRC’s guidance was so wrong as to be unlawful. 

He decided it was not, for the following reasons:

  1. On the first argument, he agreed that the COP said “should,” not “must.” He pointed out that the guidance extends to just four paragraphs and is intended to be a brief summary not a detailed legal analysis. After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable. Although it is not detailed, it is not intended to be an exhaustive guide.
  2. He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive. We look at this below. 
  3. On the second argument, he agreed with the EHRC that even if a service has met the first requirement by showing it needs to be a single or separate sex service in order to exclude men, nevertheless, it must also meet the second requirement to exclude transwomen where necessary. 
  4. It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.
  5. In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate. Someone who is genuinely visually indistinguishable will be unlikely to cause challenge or consternation on accessing a SSS, even if they should choose to do so. Focus on a person’s physical appearance is likely to be experienced as demeaning by both the subject and the person required to make the assessment.

THE EHRC’s Stance on Single Sex Services

It would have been significant if the EHRC had been forced  to change its guidance, but the refusal of permission means that the existing situation continues – but with the welcome clarity that the EHRC has acknowledged that there are instances where refusing access to a person of the opposite sex is perfectly reasonable and not phobic. 

The EHRC made two important concessions:

  1. It  distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women, 
  2. It  made clear that in its view that a women only service is permissible and  the correct approach is more nuanced  with a starting point of inclusion but recognising that exclusion can be  justified (due to being a ‘proportionate means of achieving a legitimate aim’).

What does all this mean?

EHRC agrees that women only space does not have to include anyone who is male at birth, and described prescriptive inclusion policies along the lines of self-ID as “directly inconsistent” with the Code of Practice.

And where should these cases be brought?

The judge strongly agreed with the EHRC that a better challenge would have been brought by an individual service user against an individual service provider, rather than in the abstract at the level of the EHRC and the AEA.

Whilst a reasonable view in law, this is a sad outcome for both trans and feminist service users and for service providers engaging with SSS policies. Women’s services such as crisis centres, refuges and support groups are overstretched and ill positioned to sustain lengthy legal battles.

Some of the Misleading Public Guidance

The policies which AEA had pointed to as containing misleading guidance included 

all of which envisage that a person must, in some cases from the moment they announce an intention to transition, be allowed to use shared private facilities of their preferred sex. In many of these policies there is no hint that the authors were aware that exclusion may be justified where it is a proportionate means of achieving a legitimate aim. 

EHRC said that there was no evidence that the authors of such policies had been led or misled by EHRC, and that the COP provided adequate guidance explaining that exclusion could be justified.

Here is what EHRC said in its skeleton argument about these documents:

“… insofar as the AEA’s primary objection is to guidance suggesting trans-persons must be allowed to  access the SSS of their acquired gender, that is directly inconsistent with the COP. As set out below, the COP makes clear, in terms, that trans-persons can be excluded from a service where that is justified, and, indeed, the EHRC has taken steps to bring that to  the attention of service-providers whose guidance erroneously suggests trans-persons  must always be permitted to use the SSS of their acquired gender irrespective of the  needs of, or detriment to, others. A striking feature of the present litigation is that, if the  AEA or others affected have identified guidance or practices of other public or private  bodies’ that does, in fact, reflect incorrect statements of law, it is not clear why they are  not being pursued. Instead, a claim has been brought in relation to the EHRC’s COP  which simply does not contain the alleged errors.” [emphasis added]

It might be considered remarkable that quite so many bodies have apparently developed policies without regard to EHRC’s express intervention and also its statutory Code of Practice, but there we have it. Policies and guidance which say a person must be allowed to access the SSS of their acquired gender without reference to possible exceptions is “directly inconsistent” with the COP, and the EHRC will correct service providers whose guidance is “erroneous” in that respect. 

What happens next?

Everyone who provides a single or separate sex service should ensure that they have good legal insurance. It seems likely that as a result of this litigation, women will take action against the individual service providers whose guidance is erroneous, and that more trans people will take action against SSS when they feel that they have been wrongly excluded. As these cases progress up from the county courts to the High Court and Court of Appeal, general principles will be developed through case law as to what a ‘proportionate means of achieving a legitimate aim’ looks like in practice.

Organisations offering a SSS also need a policy on how, and when, they will apply the exceptions. It will not be enough simply to say “this service is female only.” The policy must set out why the SSS is justified at all and then must say that admission of transwomen is or is not likely to be justified. A blanket ban is likely to be unlawful: the rather far-fetched example was given of a transwoman with her children approaching an otherwise empty women’s refuge in the middle of the night. The policy must envisage the improbable as well as the routine.

Finally, we need more research. Many women avoid mixed space and we hypothesise they will simply self-exclude quietly, leading service providers to become complacent about the need for single sex services. “Our service is unisex,” they say “and we see no women here who have a problem with it, therefore it is unproblematic.” Women who have stopped using a service because it became mixed, or who avoid coffee shops with unisex loos, need to make this known. Service providers need good research to rely on when deciding whether a SSS is justified in order to meet women’s needs. If the service already has an inclusive or conversely an exclusive policy it will not be enough to simply consult with existing service users – it will be necessary to identify potential users too because the policy will have defined the existing service user group. 

SINGLE SEX CYCLING

British Cycling has posted a consultation on their proposed ‘Transgender and Non-Binary Participation Policy’.  We take a look at the parts of the Equality Act 2010 that are relevant to single-sex sporting events and highlight some of the issues we consider relevant to the consultation response.

The policy can be accessed here:

Responses to the consultation are invited by way of a survey available here:

Legal Definitions

The Equality Act 2010 defines a “transsexual” person as someone who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.  That person will then have the ‘protected characteristic’ of “gender reassignment”.  The term ‘transexual’ is now considered to be outdated and ‘transgender’ is typically used instead, but there is no legal difference in the terminology.  A person does not have to have had any form of surgery or hormonal treatment to acquire the protected characteristic of gender reassignment.

A person may have the protected characteristic of gender reassignment without their legal sex being changed from that which was recorded on their birth certificate at birth.  It is only where a person has a Gender Recognition Certificate (‘GRC’) issued under the Gender Recognition Act 2004 that their legal sex is officially changed.  Fewer than 5,000 of the estimated 600,000 transgender people in the UK have been issued with a GRC.  It is not necessary for a person to have had any form of surgery or hormonal treatment in order to obtain a GRC, but they will have had to evidence to the satisfaction of a specialist panel that they have lived as their acquired gender for at least two years and that they have a medical diagnosis of gender dysphoria. 

The Equality Act creates a starting point that discrimination on the grounds of sex is unlawful.  It then goes on to create exceptions to this starting point that make it lawful to discriminate in a variety of specified circumstances.  For our purposes the relevant exceptions are “gender-affected” sports (section 195) and single-sex services, which includes the provision of changing facilities and of recreational sporting activities (schedule 3 paragraphs 27 and 28).

Sport

Similar to section 19 of the Gender Recognition Act 2004, section 195(3) of the Equality Act 2010 defines a “gender-affected activity” as 

“a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.”

Section 195(1) provides that it is not unlawful to discriminate on the basis of sex in relation to a person’s participation in a “gender-affected activity”.  This means that it is permitted for an event organiser to hold separate competitions for male and female competitors or to run separate classes for either sex within the same sporting event.  

If a sport is deemed to be a “gender-affected activity” it is lawful to limit or refuse a transgender person entry to a particular competition if it is “necessary to do so to secure … (a) fair competition, or (b) the safety of competitors”.

This would mean that it would be lawful for British Cycling to refuse to admit all transwomen entry to a female-only competition if it was considered that the effects of going through a male puberty would create a residual biological advantage in a transwoman competitor (such as height, cardio-vascular capacity, muscle mass), notwithstanding that the competitor had demonstrated suppressed testosterone levels for the required 12 month period.   This would be lawful regardless of whether or not the transwoman holds a GRC.   A failure to take these factors into account could found a claim by female competitors for indirect discrimination.

It would be unlawful to prevent a transwoman from competing in an ‘open’ or men’s category competition.

Services

The exceptions in relation to the provision of services are relevant to non-competitive cycling events and to the provision of changing facilities at an event, whether competitive or not.

Non-Competitive Events

It is lawful to hold single-sex recreational events such as a ‘women only’ cycling event, whether as a one-off or as a regular program.  

Paragraph 27 of Schedule 3 provides that it is lawful to provide a single-sex service where 

“a joint service for persons of both sexes would be less effective, and the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services”, provided that it is a “proportionate means of achieving a legitimate aim”.  

Increasing women’s participation in cycling, and in sport generally, is a legitimate aim.  Given that there are a vast number of events that are open to men and/or people of both sexes, it is proportionate to hold women-only events to create a more female-friendly atmosphere. 

When the single-sex provisions are properly relied upon, it becomes lawful to exclude all male people from that event.  This would include transwomen who do not hold a GRC.

It can be lawful to exclude transwomen who do hold a GRC, but the justification for doing so has to be more finely balanced.   This is set out in paragraph 28 of Schedule 3.  Exclusion from the event would not be on the basis that the person’s legal sex is male, but rather, it would be on the basis that they are transgender.  Factors that are relevant to the proportionality exercise can include, for example, whether the event is aimed at women who share particular religious beliefs that limit socialisation with males outside their family.

A woman who felt unable to take part in a ‘women only’ event that was open to transwomen, because of her religious or other protected belief, or because she has previously been a victim of male violence could potentially bring a claim for indirect discrimination.

Alternatively, if a transwoman is excluded from an event for women only because she is perceived as male (notwithstanding her legal status), that is at least arguably sex discrimination (not gender reassignment discrimination), and permitted by paragraph 27 of schedule 3. 

Changing Facilities

The same provisions in schedule 3 paragraphs 27 and 28 apply to single-sex changing facilities, whether they are provided at a competitive or recreational event.  It is lawful to exclude males as a class from women’s toilets and changing facilities where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”

It may also be lawful to exclude a transwoman who holds a GRC from those spaces on grounds of gender reassignment where it is proportionate to do so.  Such considerations may be whether the facilities are communal as opposed to fully-enclosed cubicles.  The legitimate aim of encouraging more women into sport should be given particular weight.  The impact on women who have suffered sex-based violence and trauma from males must be counted.  The needs of all women to privacy, dignity and a sense of safety when changing is reasonable aim that cannot be achieved by compelling them to undress in close proximity to bodies readily perceived as male.

Alternatively, it may be more straightforward simply to characterise that exclusion as discrimination on grounds of perceived sex, which will always be lawful provided the initial conditions for the provision of a single-sex or separate-sex service are met.

Response to Consultation Questions

Q1: Definitions

·      Birth Gender: the gender that a person is assumed to be when they are born. This is usually based on the Sex they are assigned at birth. 

Comment:

This is not a term recognised in law.  It conflates the concept of ‘gender’ with the recording of a person’s sex at birth.  It adds nothing in terms of clarity to the definition of ‘sex’ below.  This definition should be removed. Where relevant the appropriate term would be “sex recorded at birth”.

·      Self-Identified Gender: the gender that the person identifies as, opposed to that which is assigned at birth, their ‘Birth Gender’. 

Comment:

      This is muddled:

–       Sex is recorded at birth, gender is not.

–       As above, ‘Birth Gender’ adds nothing to the definition of ‘sex’.

–       It conflates the situations of people who are transgender by virtue of ‘self-identification’ with those who have legally changed their sex upon the issuance of a GRC.  Their status’ are legally distinct.

Suggest amending to:

Self-Identified Gender: the gender that the person identifies as, opposed to the sex recorded on their birth certificate.

·      Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’ and including indeterminate Sex. 

Comment:

‘Indeterminate sex’ is an inappropriate term. People with chromosomal anomalies that result in Differences of Sexual Development (‘DSD’) are still recognised as being either male or female.

To properly recognise people who have been issued with a Gender Recognition Certificate, suggest amending to:

Sex: a person’s biological and physical characteristics, defined usually as either ‘male’ or ‘female’, or their ‘legal sex’ as recorded in their Gender Recognition Certificate.

·      Transgender: a person whose Gender Identity is different from their physical Sex at birth. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation. 

Comment:

This definition is broader than the protected characteristic of ‘gender reassignment’ in the Equality Act.  The Act requires that a person is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.  Merely identifying as being of a different gender from one’s birth sex is not sufficient to bring a person under the definition of this protected characteristic.  Given that this would form the basis for deciding whether an individual is protected from discrimination and the application of single sex exceptions, this requires precision and therefore suggest amending to the legal definition:

Transgender: a person proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Those people who, as defined by the Equality Act 2010, share the protected characteristic of gender reassignment and are described as transsexual people under the legislation.

Q2: Membership 

The following amendments are suggested:

·      “gender other than that assigned at birth” amend to “gender other than their sex as recorded at birth”

·      “for sporting purposes” amend to “for the purposes of British Cycling events and activities”

·      “obtain British Cycling Race Membership in their Self-Identified Gender” amend to “obtain British Cycling Race Membership in their Self-Identified Gender or legal sex as recognised by a Gender Recognition Certificate”.  

At present the policy does not expressly consider transgender people who have a GRC and who have already changed their legal sex; it appears as it only requires a person who does not have a GRC to present medical evidence that they meet the conditions set out in paragraph 5.  As there is no medical condition attached to the issuance of a GRC, the policy must make it clear that both self-identified transgender people and those who hold a GRC must satisfy the medical requirements.

·      “their membership shall be in their Self-Identified Gender rather than the Sex assigned at birth” amend to “their membership shall be in their Self-Identified Gender or reassigned Gender pursuant to a Gender Recognition Certificate rather than the Sex recorded at birth” 

Q 3: Recreational Activity 

This section of the policy, in conjunction with the provisions relating to membership in section 2 allows any male person, even if he is not actually transgender, full and unfettered access to women only cycling events and to women’s toilets and changing rooms provided at those events.  All that is required is that he signs a declaration that for “sporting purposes”, he wishes to be treated as if he is female.  He does not have to show that he in any way ‘lives as a woman’ or even that he is actually transgender.

The policy fails to apply the single-sex exceptions as contained in schedule 3 of the Equality Act.  Failure to provide appropriate single-sex facilities would unlawfully discriminate against women who attend, or wish to attend an event.  It is also contrary to British Cycling’s stated aims of increasing the participation of women in the sport. 

Q4: Competition

This policy should be worded with greater clarity.  

In relation to licences to complete in the female category there is no specification of how the reduction of testosterone has to be evidenced.  Is it sufficient to produce a Medical attestation demonstrating that the required hormone levels were met 12 months prior to the date of application?  Must this also be evidenced at a date and shortly prior to application and if so, within what time?  Is evidence in the intervening period required?  How often must testosterone levels be monitored thereafter- is an annual test sufficient?

If a competitor is issued with a female race licence but then fails to evidence that they have kept their testosterone reduced to the correct level in the subsequent 12 months, what happens to any titles, prize money etc that they may win during that period?  

In relation to licences to complete in the male category there is no reference to the Therapeutic Use Exemption certificates that would be required in relation to a transman injecting testosterone.  

Q 4 Other Comment 

Public Sector Equality Duty

British Cycling is likely to be bound by the requirements of section 149 of the Equality Act 2010 – the Public Sector Equality Duty.  This applies to some private organisations if they carry out a “function of a public nature”.  British Cycling is funded in part by public funds, and exercises delegated powers from Sport England.  Its role as a governing body for the sport, including its role in the selection and management of national teams means that it is likely to be deemed meet this criteria.

It therefore has a duty: 

“in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is obliged to consciously direct its mind to these obligations and to evidence that it has analysed its policies to ensure compliance with the Equality Act.  This would involve taking proper consideration of the rights and views of people of all protected characteristics.  British Cycling should carry out an equality impact assessment, informed by a proper consultation with its members to assess the impact of this policy on people of all protected characteristics and particularly on women, including women of minority ethnicities and religions. 

Emma Stuart King