Tag: discrimination

SOMETHING FOR EVERYONE

A GUIDE TO NAVIGATING UK LAW ON SINGLE-SEX TOILET, WASHING & CHANGING FACILITIES IN WORKPLACES & IN SERVICES PROVIDED TO THE PUBLIC

Something for Everyone – Single Sex Facilities and the Law – Legal FeministDownload

DISCRIMINATION CLAIMS ABOUT SINGLE SEX FACILITIES

1. If an employee thinks that her employer’s practices or policies in relation to single sex facilities in the workplace are discriminatory, she can bring a claim in the Employment Tribunal under the Equality Act 2010 (“EqA”). Similar EqA claims about single sex facilities can be brought in the County Court by users of services which are open to the public, like swimming pools, libraries, hospitals and restaurants.

2. The types of EqA claim which are most likely to be brought in the Employment Tribunal or County Court about single sex facilities are claims for indirect discrimination and claims for harassment related to sex. Other possible claims, which are not dealt with here, are for direct sex discrimination and for sexual harassment (which differs slightly to harassment related to sex).

Indirect discrimination

3. Indirect discrimination claims which might be brought by people who wish to access single sex facilities include:

> A claim by a female employee or service user for indirect sex discrimination brought on the basis that women are more disadvantaged by having to undress, shower or use the toilet in the presence of males than the other way around.

> A claim for indirect religion or belief discrimination brought by an employee or service user who adheres to a religion, such as Islam or some forms of Judaism or Christianity, which prohibits or discourages undressing or being in intimate proximity with people of the opposite sex.

> A claim for indirect religion or belief discrimination brought by an employee or service user with a protected philosophical belief, such as gender critical belief, which recognises the importance and relevance of the differences between the biological sexes.

> A claim for indirect age discrimination brought by an older employee or service user who abides by standards of modesty in relation to undressing, using the toilet or washing in proximity with people of the opposite sex which are more prevalent in older age groups.

4. At the same time, people who wish to access single sex facilities provided for the opposite sex may bring indirect gender reassignment discrimination claims, if their employer or service provider requires trans people to use facilities according to their biological sex. Many (though not all) people who identify as the opposite sex have the protected characteristic of gender reassignment. A claim of this sort would be brought on the basis that (for example) it is more disadvantageous for a man who has the protected characteristic of gender reassignment to use the men’s facilities than it is for a man who does not have the protected characteristic of gender reassignment.

5. In an indirect discrimination claim, if the employee or service user shows that the practice or policy relating to single sex facilities is, on the face of it, indirectly discriminatory, it is then open to the employer or service provider to show that the practice or policy is nonetheless justified because it is a proportionate means of achieving a legitimate aim (“the justification defence”).

Harassment related to sex

6. This is unwanted treatment related to sex which causes the “proscribed effect”. The proscribed effect is that the treatment violates the employee or service user’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her. Harassment can be a one-off event or a series of events or an ongoing practice. Thus an employee or service user can complain either about one or more incidents in which she has encountered a male in the women’s facilities or about a policy or practice of permitting this to happen, so long as she can establish that what she is complaining about is “conduct related to sex”. At present there is no legal authority which says that allowing males to use women’s facilities is “conduct related to sex”, but the point is being argued in Peggie v NHS Fife. The test for whether conduct is “related to” a protected characteristic is a broad one.

7. It is not enough for the employee or service user simply to say that she feels the proscribed effect; it must be reasonable for her to have felt it. This is usually the key issue in harassment claims. In considering this, the court or tribunal must take into account all the circumstances of the case.

WORKPLACES: THE 1992 HEALTH & SAFETY REGULATIONS

Facilities required in workplaces by the 1992 Regulations

8. The law which mandates that single sex facilities must be provided in workplaces is not contained in the EqA. It is contained in the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Regs”), by which workplaces must have sanitary conveniences (toilets) (Reg 20) and washing facilities (Reg 21). They must also have changing facilities if these are needed because of the type of work done in the workplace or for health reasons (Reg 24). All these facilities must be both “suitable” and “sufficient”.

9. The facilities must be for the use of all people who work in the workplace, not just employees. This includes any type of worker or self-employed contractor.

10. Toilet, washing and changing facilities in workplaces will only be “suitable” for the purposes of the 1992 Regs if there is separate provision for men and women.

11. The only exceptions to the single sex rule for workplace facilities are:

> Toilets: toilets can be in separate lockable rooms (not cubicles).

> Washing: if the only washing required is of hands, forearms and face, the washing facility may be shared between men and women. Otherwise, washing facilities can be in individual lockable rooms that are intended for single-person use (not cubicles).

> Changing: changing rooms can be shared between men and women if separate provision is not necessary for reasons of propriety. Where separate provision is necessary for reasons of propriety, this can be in a single changing room as long as it can be used separately by men and women (i.e. at different times).

12. The 1992 Regs do not say how many facilities must be provided in a workplace to be “sufficient”, other than in the case of old, unmodernised factories, where there must be at least one suitable toilet for use by females only for every 25 female workers, and the same for males.

13. Employment Tribunals do not have jurisdiction to determine complaints about breaches of the 1992 Regs. The principal method of enforcement is via the Health and Safety Executive (“HSE”), which has powers to impose sanctions on employers.

14. In theory it might be possible for an individual to bring a claim for a breach of the 1992 Regs in the County Court on the basis that the employer has failed to comply with a statutory duty, but since the 1992 Regs do not themselves provide for a civil remedy it would be difficult to persuade a court to permit such a claim to proceed, particularly where an enforcement mechanism is provided through the HSE.

Equality Act complaints about single sex facilities in workplaces

Indirect discrimination

15. Although the 1992 Regs cannot be relied on directly in an Employment Tribunal claim (see §§13-14 above), they are pivotal in Employment Tribunal claims for indirect discrimination under the EqA about the provision of single sex facilities in the workplace.

16. If an employee brings an indirect discrimination claim about a failure to provide single sex facilities (as described at §3 above), the existence of the 1992 Regs makes it very difficult – probably impossible – for the employer successfully to invoke the justification defence (see §5 above). To be successful, the employer would have to show that it had a legitimate reason for contravening the mandatory statutory duty in the 1992 Regs and that it did so in a proportionate way. It is difficult to see how this argument could conceivably work.

17. Similarly, if an employee brings an indirect gender reassignment discrimination claim about an employer’s refusal to allow him or her to use the facilities provided for the opposite sex (as described above), the fact that the 1992 Regs mandate single sex facilities in workplaces means that the employer’s justification is virtually watertight.

Harassment related to sex

18. The existence of the 1992 Regs is also significant in relation to claims of harassment related to sex which are about the provision or use of single sex facilities in workplaces (as described at §§6-7 above), even though employees cannot rely on the 1992 Regs directly in the Employment Tribunal.

19. In a claim of this sort, one of the “circumstances” that will have to be taken into account by the Employment Tribunal (see §7 above) is the fact that the 1992 Regs mandate single sex facilities in the workplace. It is very likely that an employee would be able to persuade a Tribunal that it was reasonable for her to experience a breach of this law as a violation of her dignity, since the law itself recognises that single sex facilities can be necessary for reasons of “propriety”.

The meaning of “woman” & “man” in the 1992 Regulations

People without Gender Recognition Certificates

20. There is no law which allows people to self-identify into the opposite sex for the purposes of the 1992 Regs, or indeed for the purposes of any other UK legislation (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the 1992 Regs or for any other legal purpose. Only a Gender Recognition Certificate (“GRC”) can have this effect. Thus under the 1992 Regs a woman is, at least, anybody who was born female and does not have a GRC, and a man is, at least, anybody who was born male and does not have a GRC.

21. This means that the 1992 Regs do not allow employers to provide toilet, washing or changing facilities only on a self-ID basis. If an employer allows males who do not have GRCs to use a women’s facility, it will no longer be providing a facility which is for women only. This will amount to a failure to comply with the 1992 Regs unless there are suitable and sufficient alternative women’s facilities available elsewhere in the workplace which are not open to any males who do not have GRCs.

People with Gender Recognition Certificates

22. For people who do have GRCs the position is unclear. Under the Gender Recognition Act 2004 (“GRA”) the consequence of a person being awarded a GRC is that his or her sex changes to the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1). However there are some exceptions to this principle, so there are some laws under which males with GRCs do not have to be treated as women (and vice versa). It is arguable that the 1992 Regs should or must be treated as an exception. If they are, then men with GRCs should be treated in the same way as men without GRCs in relation to single sex facilities in the workplace (see §§20-21 above).

23. In the For Women Scotland case the Supreme Court is currently deciding whether the principle in the GRA applies to the EqA. The Court is not deciding whether the principle applies to the 1992 Regs, so the judgment will not bring certainty about whether employees with GRCs should have access to opposite-sex facilities in workplaces. However, it is likely to give a steer as to how “woman” and “man” should be defined for the purposes of legislation other than the EqA, such as the 1992 Regs.

24. If it can clearly be inferred from the Supreme Court judgment that a GRC does not change a person’s sex for the purposes of the 1992 Regs, then the position for employees with GRCs will be the same as it is now for those without GRCs (see §§20-21 above).

25. If it can clearly be inferred from the Supreme Court judgment that a GRC does change a person’s sex for the purposes of the 1992 Regs, then an employer will have to ensure that there are sufficient women’s facilities in the workplace which can be used by males with GRCs and sufficient men’s facilities which can be used by women with GRCs. However, that does not mean that there will be no legal route for complaint from employees who wish to have access to single sex facilities on a biological sex basis. These employees might still bring complaints arguing that it amounts to indirect discrimination or harassment related to sex (as described at §§3-7 above) for the employer not to also provide single sex facilities on a biological sex basis.

SERVICES PROVIDED TO THE PUBLIC: THE EQUALITY ACT 2010

Facilities permitted in services by the Equality Act

26. There is no equivalent to the 1992 Regs for members of the public who use services such as hospitals, swimming pools, restaurants etc. Instead the position is governed entirely by the EqA, and is considerably more complicated.

27. The starting point is that under the EqA it is usually unlawful direct sex discrimination to exclude service users of one sex from a facility. However there are exceptions to this rule which allow a service provider to provide single sex facilities for one of five permissible reasons. These reasons include that “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex”. Another permissible reason is that the service is a hospital or a similar setting.

28. It is not enough for one of these five reasons to apply. It must also be justifiable in the particular circumstances for the facility to be provided only to women or only to men. The service provider must be able to show that having a facility only for women or only for men is a proportionate means of achieving a legitimate aim.

Equality Act complaints about single sex facilities in services

Indirect discrimination

29. The exceptions in the EqA for single sex facilities are permissive rather than mandatory, which distinguishes them from the rules for workplaces in the 1992 Regs. Thus a service provider does not have to provide single sex facilities for service users. However, a service provider which fails to do so could find itself facing a complaint of indirect discrimination from a service user of one of the types described in §3 above.

30. Here there is no mandatory statutory duty which strengthens the service user’s case, as there is for employees under the 1992 Regs (see §22 above). Nonetheless, depending on the facts and evidence in the case, the strong societal tradition in favour of single sex facilities mean that it will still be difficult for the service provider successfully to invoke the justification defence (see §5 above). If the complaint is of indirect sex discrimination, other factors favouring the complainant should include the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities. For similar reasons it will be difficult for a service user to succeed in an indirect gender reassignment discrimination claim based on a wish to access the facilities provided for the opposite sex.

Harassment related to sex

31. Again, depending on the facts and evidence, it is likely to be difficult for a service provider to defend a claim of harassment related to sex (see §§6-7 above) by arguing that it was not reasonable for a female service user to feel that her dignity was violated by having to share facilities with males. As above, compelling factors include the societal tradition in favour of single sex facilities, the overwhelming evidence of the dangers that men as a class statistically pose to women and the evidence of increased risk to women in unisex facilities.

The meaning of “woman” & “man” in the Equality Act

People without Gender Recognition Certificates

32. Under the EqA a woman is, at least, anybody who was born female and does not have a GRC and a man is, at least, anybody who was born male and does not have a GRC (see For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37). There is no law which allows people to self-identify into the opposite sex for the purposes of the EqA or for the purposes of any other UK legislation. The protected characteristic of gender reassignment in the EqA protects most trans people from discrimination, but it does not mean that trans people must be treated as though they are the opposite sex, whether under the EqA or for any other legal purpose. Only a GRC can have this effect.

33. Thus if a service provider allows males who do not have GRCs to use the women’s facilities:

> The facilities will no longer qualify as single sex facilities under the exceptions in the EqA (see §§26-28 above).

> Therefore the service provider will have no permission in law to exclude any other men from that purportedly single sex facility.

> The service provider would be vulnerable to indirect discrimination claims of the types described in §3 above or harassment claims of the type discussed at §§6-7 above from service users who wish to have access to single sex facilities. These will be harder to defend if there are no suitable single sex facilities available anywhere else in the service.

People with Gender Recognition Certificates

34. Under the GRA a person who has a GRC becomes the opposite sex “for all [legal] purposes” (GRA s.9(1) read with Forstater v CGD Europe [2022] ICR 1) except in the situations where that principle does not apply. The Supreme Court is currently deciding in For Woman Scotland whether the principle applies to the EqA.

35. If the Supreme Court decides that a GRC does not change a person’s sex for the purposes of the EqA, then trans people with GRCs will be in the same position as those without GRCs. That is, as service users they should be treated according to their biological sex when using single sex facilities (see §33 above).

36. If the Supreme Court decides that a GRC does change a person’s sex for the purposes of the EqA, then in principle a service provider is entitled to allow males with GRCs to use facilities provided for women (and vice versa). However:

> The EqA contains a further set of exceptions which allow service providers to exclude trans people with GRCs from single sex facilities where it is a proportionate means of achieving a legitimate aim to do so. In this way, service providers may provide facilities on a single biological sex basis.

> A service provider which does not invoke these exceptions might face complaints of indirect discrimination such as those in §3 above or harassment of the type described in §§6-7 above from service users who wish to have access to single sex facilities on a biological sex basis.

> A service provider which does invoke these exceptions might face a complaint of indirect gender reassignment discrimination of the type described at §4 above. Claims of this sort will be easier for the trans service user to win than they would be if the Supreme Court had decided that a GRC does not change a person’s sex for the purposes of the EqA.

WHAT EMPLOYERS & SERVICE PROVIDERS SHOULD DO

37. The current state of the law on single sex facilities is clearly unsatisfactory. Quite apart from anything else, it seems that employers and service providers should distinguish between trans people who have GRCs and those who do not. In services in particular this will almost always be impossible to do. Furthermore in both workplaces and services, it makes no difference to other users of the facilities whether a trans person has a GRC or not; they remain a person of the opposite sex.

38. The upshot of this mess is that the safest (although not risk-free) option for service providers and employers is to offer some “unisex” or “gender neutral” facilities for the use of people who do not wish to use facilities according to their sex, and to provide sufficient single sex facilities on a biological sex basis for everybody else, if it is possible to do so (note this should not be done be repurposing accessible facilities). Neither the 1992 Regs nor the EqA prohibits the provision of unisex facilities in addition to single sex facilities.

39. This solution will not be available to all employers or service providers because of the burden of cost and/or a lack of physical space. Where it is not possible, employers and service providers are caught between the prospect of discrimination claims brought by people who want single sex facilities and those brought by trans people who want to use facilities in their acquired gender. It can only be hoped that the Supreme Court will clarify the position, and that if it does not, that the Government will step in and amend the relevant legislation so that employees and service users can understand their rights and employers and service providers can understand their obligations.

25 February 2025

This article does not constitute legal advice or give rise to a lawyer/client relationship. Specialist legal advice should be taken in relation to specific circumstances. The contents of this article are for general information purposes only. No warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. This work is licensed under the Creative Commons Attribution 4.0 International License.

BSB Consultation on Equality Rules – Legal Feminist Questions

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

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

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

Dear BSB

Consultation on the Proposed Amendments to the Equality Rules

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

We would like to request the following information.

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

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

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

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

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

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

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

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

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

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

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

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

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

We look forward to hearing from you.

Yours faithfully

FWS v Scottish Ministers: what to read before the hearing

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

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

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



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

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

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

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

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

Academics and practitioners

Dr Claire Methven O’Brien 

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

Dr Michael Foran  

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

What is a woman? The Scottish Government’s case 

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

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham 

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method – 

Scott Wortley

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

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

Organisations

Murray Blackburn Mackenzie

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

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

Sex Matters

Sex Matters’ intervention to the Supreme Court 

What about the other side? 

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

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

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

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

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

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

Defining ‘sex’ in the Equality Act

Bailey v Stonewall

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

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

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

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

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

She appealed to the EAT. 

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

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

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

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

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

… 

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Feminist Response To Financial Conduct Authority’s Consultation on “Diversity and Inclusion Financial Sector Working Together Drive Change”


Introduction

Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including in particular financial services, discrimination and data protection, as well as corporate governance, company law, corporate finance, criminal law, human rights law and public and administrative law. Our range of specialisms enables us to consider holistically the issues raised in the Consultation Paper (CP) and our collective experience enables us to comment on the practical implications of some of those issues.  As a non-aligned collective of lawyers from a range of backgrounds, we do not represent any particular firm or issuer and are therefore well-placed to give candid feedback on the issues raised by the CP.

Executive summary

For reference to consultation document see https://www.fca.org.uk/publications/consultation-papers/cp23-20-diversity-inclusion-financial-sector-working-together-drive-change

As feminists, we welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support the concept of evidence based strategies. However, the FCA’s proposals engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.  Our more detailed responses to questions are set out later in this response, but in summary:

  • The definitions of discriminatory practices and demographic characteristics are ambiguous and will cause confusion and so not meet the FCA’s objectives. We recommend the FCA adopt the definitions of discrimination and harassment applied in the Equality Act and the definition of bullying applied by ACAS, since these are all well understood and supported by a developed body of case law. The term demographic characteristics should be replaced with “protected characteristics” (with the possible addition of socio economic status) and should be defined by reference to the Equality Act.

  • Subject to our comments on the definitions, we support the proposals in respect of non-financial misconduct relating to colleagues and those relating to misconduct outside the workplace.
  • With regard to data collection, reporting and targets:
  • The sector has not yet done enough to tackle the cultural issues faced by women and the barriers which lead to women leaving the sector and which hold back their progression to senior roles. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  
  • We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of women and ethnic minority membership of boards as a result of board level initiatives and support the greater extension of this to senior leadership. 
  • More should be done to address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore track outcomes for women following pregnancy and maternity leave – for example through exit and promotion data, and develop specific strategies to tackle the issues and improve outcomes.
  • That said, lack of promotion cannot be solely blamed on pregnancy and family responsibilities.  Firms should also focus attention on systemic biases that persist regardless of family responsibility including by analysing data on evaluations, progression, allocation of opportunities and exit data.

  • Collection of data on sex (rather than gender) should be mandatory to reflect the protected characteristic in the Equality Act and so minimise data protection issues. This will better facilitate use of the positive action provisions of the Equality Act and therefore enhance achievement of the FCA’s objectives. It will also align with the mandatory disclosure regime for listed companies under the Companies Act. 

  • Allowing organisations to choose to report on gender instead of sex constitutes indirect discrimination since it places those with gender critical beliefs at a particular disadvantage and is not objectively justified.  As such, the FCA would be inducing a breach of the Equality Act.  We have suggested a more proportionate approach in our comments below.

  • Allowing organisations to choose between sex and gender will also lead to inconsistency and poor quality data. Encouraging collection of data on gender is therefore inconsistent with the FCA’s Public Sector Equality Duty (PSED) set out in the Equality Act 2010.

We have answered questions 4, 5, 7 8 and 10 to 17 of the CP below.

Q4: To what extent do you agree with our definitions of the terms specified? 

We disagree with the definition of discriminatory practices.

In order to achieve the FCA’s objectives, it is essential that key definitions are clearly defined in order to ensure transparency, consistency and fairness of application. Since discrimination and harassment can be unintentional and under the proposals there are potential career ending consequences if an individual is found responsible for discriminatory practices, ambiguity must be avoided. 

The definition of the term “Discriminatory Practices” includes discrimination,  harassment or victimisation due to “demographic characteristics”.  However “demographic characteristics” is not defined and it is unclear what is meant by this phrase. In particular, it is unclear whether it includes all the protected characteristics in the Equality Act such as religion and belief, marriage and civil partnership, and what additional characteristics are included.

Our recommendation is that:

  • Either the term demographic characteristics is replaced with “protected characteristics” by reference to the Equality Act; or
  • If the intention is to include socio economic status, to define demographic characteristic as meaning “a protected characteristic pursuant to the Equality Act or socio economic status”. 

Q5: To what extent do you agree with our proposals to expand the coverage of non-financial misconduct in FIT, COCON and COND?

We disagree with the proposed language in FIT and COCON including the proposed definition of harassment.

We agree that non-financial misconduct should be addressed in FIT COCON and COND and recognise the need for the FCA to effectively reverse the outcome in the Frensham. However we have concerns with regard to the scope of the proposed extension:

With regard to conduct outside of work:

  • We agree that dishonesty outside of work is always likely to be relevant to the fit and proper assessment.
  • However, we have material concerns about the proposal to include conduct outside of work that does not involve “a breach of standards that are equivalent to those required under the regulatory system“. In particular, the amendments suggest that a person may be determined to lack “moral soundness, rectitude and steady adherence to an ethical code” as a result of conduct that is “disgraceful or morally reprehensible or otherwise sufficiently serious”.  Terms such as “disgraceful” and “morally reprehensible” introduce a significant degree of ambiguity. Firms are therefore likely to find it more difficult to determine whether an individual remains fit and proper or what to state in a regulatory reference. This is likely to lead to a lack of consistency which is undesirable.  In that regard we would note that the UK financial services industry operates in and draws its workforce from a multi-cultural environment. Accordingly,  there are likely to be cultural and other differences of view as to what is morally wrong.  The FCA’s objectives can be fully met by limiting non-financial misconduct committed outside of work to situations where the conduct is reasonably judged by the employer to amount to a criminal offence (whether or not the individual is charged or convicted). 
  • With regard to conduct towards colleagues:
  • The proposed definition of harassment goes beyond that in the Equality Act, is ambiguous, and will lead to a lack of consistency in determining whether workplace conduct amounts to a breach of the Conduct Rules.  The proposed definition starts with the same language as that of the Equality Act, but goes on to cover conduct that “is unreasonable and oppressive” or “humiliates, degrades or injures” the other person. The reference to “unreasonable” conduct creates unnecessary ambiguity. This risks creating uncertainty for firms seeking to apply the definition. This is unacceptable given that a finding of harassment could end an individual’s career. The ambiguity will also lead to inconsistency between firms. We recommend that the COCON amendment adopt the Equality Act definition of harassment alone. This is a longstanding, well understood definition, with a well-established body of caselaw to assist in its interpretation. 
  • The Conduct Rules should also incorporate an important safeguard to interpretation in the Equality Act currently omitted from the proposed COCON amendment. Under the Equality Act harassment is unlawful if it has the proscribed effect (ie if the act in question creates a hostile etc environment) even if that effect was unintentional. However the Equality Act goes on to state that when considering if the actions have that effect, account should be taken of the other person’s perception, the circumstances, and whether it is reasonable for the conduct to have that effect. This ensures a level of objectivity in the assessment. While we also welcome the list of general factors for assessing misconduct in relation to colleagues set out in the draft COCON 1.3 , (such as whether the conduct is repeated, its duration, degree of impact and likelihood of damage to culture, the relative seniority of those involved and whether the conduct would justify dismissal), we recommend adopting the additional language from the Equality Act in addition to the proposed general factors.
  • It is our view that conduct toward colleagues should not be regarded as misconduct unless the employer reasonably considers that it amounts to harassment or victimisation within the meaning of the Equality Act and in respect of the characteristics protected by the Equality Act, or harassment within the meaning of the Protection from Harassment Act, or bullying within the definition provided by ACAS, or commission of a criminal offence.  

With regard to the threshold Conditions, we note our concerns stated above regarding the definition of Discriminatory Practices. 

 Q7: To what extent do you agree with our proposals on D&I strategies? 

We agree with the FCA’s proposal that firms should be required to develop evidence based strategies.

The sector needs to do more to tackle the cultural issues faced by women, the deconstruct the barriers that prevent women rising to the most senior levels, and to retain women in the sector. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  In this regard we note:

  • Women typically are more likely than men to take time out of their careers for children, and to bear an unequal share of the burden of childcare. The sector has not done enough to understand and address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore expressly track outcomes for women following pregnancy and maternity leave, and develop specific strategies to tackle the issues and improve outcomes, for example to address allocation of career developing opportunities. 

  • However pregnancy and maternity leave are not the sole reasons for the lack of women in senior positions. Firms should also focus attention on systemic biases that have led to this.

  • Some firms have tried to address under-representation of certain groups including women and ethnic minorities through a range of initiatives such as training, policies and mentoring programmes. While these programmes can have positive benefits, they have not to date led to sufficient progress. They are often fragmented, and do not tackle the fundamental structural and cultural issues that persist.  At a time when DE&I resource and funding is under material pressure, we welcome an evidence based approach that focuses on the issues facing women and other underrepresented groups, and which looks at why existing initiatives have not worked.

  • We consider that firms need to investigate and understand what is happening in their organisations, at every point in the employee life cycle, in order to identify where the true challenges are, and develop a strategy to address these challenges. This would involve examining  data not just on recruitment, but at every stage of decision making from intake to annual evaluation, pay and bonus, promotion, allocation of work and opportunities and through to leaver data. For example:

    • Is there evidence that women are less likely to achieve the highest ratings in evaluations? Does this indicate systemic bias in the performance appraisal system?Whether there is bias in the firm’s system for allocation of developmental projects, client relationships and opportunities that are more likely to lead to promotion and higher bonus awards. 

    • Firms should then use this data to build their strategy to tackle inequality in allocation of work and opportunities, bias in the assessment of women and ethnic minorities, lack of transparency in promotion processes, lack of pay transparency, presenteeism and lack of recognition for the differing levels of contribution made by women and men to positive workplace behaviours. 

Q8: To what extent do you agree with our proposals on targets? 

We partially agree with these proposals. 

We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of listed company boards as a result of initiatives to set targets for representation of women and ethnic minorities and support the greater extension of this to senior leadership.

However we qualify our response noting that:

  • Firms should limit themselves to targets in respect of the main protected characteristics which are measurably under represented compared to the general population. These are likely in most organisations to be sex, ethnicity and disability. In addition, we support targets based on socio economic status. 

  • As noted below in response to question 10, data and targets should refer to sex not gender.

  • Targets should be set by reference to context including the population from which the firm recruits.

  • The FCA should state clearly how socio economic status is to be defined in the context of targets and reporting.

  • Targets should remain aspirational. The recent highly publicised investigation into discrimination in recruitment at the RAF demonstrates the risk where targets are treated as akin to quotas and where inappropriate pressure is placed on individuals to meet them.

Q10: To what extent do you agree with the list of demographic characteristics we propose to include in our regulatory return? 

We disagree with the proposal to make collection of sex data optional and to make maternity data optional. 

  • Sex is the relevant protected characteristic in the Equality Act 2010. Collection of data on sex should be mandatory. Gender is not a protected characteristic and does not have a recognised meaning. The conflation of sex and gender diminishes the value of the data, and has the effect of introducing self-identification of gender.  This will hamper achievement of the FCA’s objectives, since one of  the main reasons for lack of advancement of women is structural sexism. If data on sex is not collected, structural sexism cannot be measured and addressed. 
  • In providing firms with the option of reporting on the basis of gender in place of sex, the FCA is itself inducing discrimination against those with gender critical beliefs:
  • Indirect discrimination occurs where a practice puts an individual and those who share their protected characteristic at a “particular disadvantage” unless this can be objectively justified. 
  • The gender critical belief (that sex is biological and immutable, and that gender is a concept based on the imposition of stereotypes on each sex) is a protected characteristic. 
  • If employers elect to collect data, set targets and strategy and report on gender rather than sex, those with gender critical beliefs will be placed in an invidious position: their alternatives will be to state something they do not believe in, ie their gender, which is unacceptable to them, not to respond at all, or to select “prefer not to say”.  
  • As such, they are deprived of the opportunity to have their most fundamental characteristic recorded. This places them at a particular disadvantage. Caselaw has made clear that the threshold for establishment of particular disadvantage is not in fact high.  A decision to collect data on gender not sex exceeds this threshold by some considerable margin.  It is more than reasonable for those with gender critical beliefs to wish to have their sex accurately recorded, not to record a gender which they don’t believe exists, and not to be placed in the invidious position where because they cannot respond to the term gender, and are not offered the chance to state their sex, meaning that one of their most fundamental protected characteristics is not recorded.
  • Such a requirement cannot be objectively justified.  While the aim may be to accommodate those trans-identifying colleagues who wish to record their gender, the replacement of sex with gender is not a proportionate way of achieving that aim.  It is deeply offensive to those with gender critical beliefs, and particularly to women. It clearly cannot under any circumstances be appropriate to entirely erase one protected characteristic – sex – in the interests of accommodating.  The more proportionate approach would be to collect data based on sex recorded at birth, combined with a supplementary optional question as to whether the individual considers they have a gender identity that differs from their sex recorded at birth.  This would also have the benefit of ensuring that the employer had accurate data on both issues.  
  • Accordingly, any requirement on or by firms to ask individuals to identify their “gender” is therefore discriminatory.  
  • We also envisage that many of those holding orthodox religious views would similarly disbelieve in innate gender overwriting sex and so would similarly be subject to discrimination.
  • Encouraging discrimination is inconsistent with the PSED.  
  • Following a legal challenge to the ONS, the UK Census collects data on sex. This approach has been followed by the Solicitors Regulation Authority (SRA).  The SRA’s approach is to collect data on sex, with three options: male, female and prefer not to say. This is followed by a question to accommodate those hold the belief that they have a gender identity (by asking if they consider they have a gender identity different to their sex as registered at birth). This approach enables accurate collection of data on sex and would better achieve the FCA’s objective.
  • As part of their diversity strategies, firms should be encouraged to use the positive action provisions in sections 158 and 159 of the Equality Act. Section 158 for example, facilitates initiatives such as sponsorship and mentoring programmes, diverse interview panels, diverse long lists, specialist open days and outreach programmes etc.  Section 159 enables a decision to appoint an individual from an underrepresented group if certain stringent conditions are met.  As Government and EHRC guidance makes clear, reliance on these provisions is dependent on having data. Accordingly, the ability to apply these provisions in respect of initiatives focused on women is dependent on having good quality data in respect of the protected characteristic of sex.  Data based on “gender” would not meet this requirement.
  • Under GDPR there is a clear legal basis for collecting data on sex, whereas that is not the case for “gender” which is arguably special category data.  
  • The FCA is subject to the PSED under the Equality Act meaning that it must have ‘due regard’ to the need to: 
  • eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the EqA]
  • advance equality of opportunity between people who share a protected characteristic and those who do not share it and, 
  • foster good relations between people who share a protected characteristic and those who do not share it. 
  • Application of the PSED must be related to the protected characteristics in the Equality Act. Mandatory collection of data on sex would ensure that regulators are able to comply with the PSED:
  • Policy making that seeks to conflate two protected characteristics (sex and gender reassignment) or introduce the concept of gender, which is not a protected characteristic, would fail to advance equality of opportunity between those who share one of those protected characteristics and those that do not.  It would therefore be a breach of the FCA’s duties under the PSED to implement proposals to replace sex with gender, or treat sex as not mandatory.
  • In this regard we note that the Government has abandoned the use of the term “BAME” because (a) aggregation of data for different ethnic groups masks differences in outcome, and (b) because of the offence caused to groups who found themselves grouped together notwithstanding their very different experiences. By analogy, use of the term gender will aggregate the women and those born male who identify as trans, notwithstanding that they will have different experiences, particularly those who identify after their careers have been established. It has also been established that men and women have different risk taking behaviours.   It is very likely that from a risk perspective, the risk taking behaviour of those born male is more likely to align with their birth sex. Further, and as noted above, aggregation is offensive to those with gender critical beliefs.
  • We also consider that firms should collect data on pregnancy and maternity.  Pregnancy and maternity are major contributors to women leaving the sector, to the reduction in opportunities, and lack of promotion to more senior roles. The impact of pregnancy on women’s careers is far greater than the impact that becoming a parent or taking paternity leave has on fathers. In fact there is some evidence that men’s careers take off after fatherhood.  While pregnancy and  maternity leave are for a limited time period, firms could still measure and track progress for women on return from maternity leave – for example how long do they stay, are they overrepresented in redundancy exits, are they under-represented on promotion, and what is the impact on bonus. While the data sets may be relatively small, data protection concerns could be addressed by requiring firms to collect and report such data to the FCA,  but not publish it. 
  • We reject the suggestion that data on parental responsibilities is a more suitable long-term metric than pregnancy and maternity data. There is clear evidence that motherhood has a detrimental impact on women’s careers, and that parental responsibility does not affect men’s careers in the same way. Our view is that firms should collect and report data on pregnancy and maternity, and that data on parental responsibilities should be sub divided by sex.   

Q11: To what extent do you agree that reporting should be mandatory for some demographic characteristics and voluntary for others? 

We agree that in principle reporting of some characteristics should be mandatory and others voluntary:

  • We consider that the mandatory requirements should be limited to key demographic characteristics.  
  • Reporting on parental responsibility should be subdivided by sex, reflecting that typically the impact of parental responsibility on careers differs between men and women. Indeed there is some evidence not only that women’s careers are harmed by having children, the career and pay prospects of men improve.

Q12: Do you think reporting should instead be mandatory for all demographic characteristics? 

No. We consider that reporting (and resources) should focus on key characteristics, including sex, ethnicity and disability. 

Q13: To what extent do you agree with the list of inclusion questions we propose to include in our regulatory return? 

We agree save that the reference to feeling insulted or badly treated because of personal characteristics should be restricted to protected characteristics.

Q14: To what extent do you agree with our proposals on disclosure? 

We agree save that disclosure should relate to sex, not gender.

Q15: To what extent do you agree that disclosure should be mandatory for some demographic characteristics and voluntary for others?

Disclosure of data in respect of sex, ethnicity and disability should be mandatory since these groups are clearly under-represented in comparison to the UK population,

Q16: Do you think disclosure should instead be mandatory for all demographic characteristics? 

No – see our response to question 15. The experience of Legal Feminist is that reporting on multiple characteristics is likely to lead to a diversion of resources away from the key priority areas, as firms would need to spend time and resource on a campaign to build up reporting of data. 

Q17: To what extent do you agree that a lack of D&I should be treated as a non-financial risk and addressed accordingly through a firm’s governance structures? 

We agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Red tape or essential protection? Third party harassment revisited.

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

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

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

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

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

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

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

It recommended amongst other steps that:

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

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

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

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

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

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

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

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

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

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

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

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

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

CONFLICTS OF INTEREST

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

A thought experiment

Take a religious group – something like Opus Dei, for instance. What might it do if determined enough? Let’s imagine. 

  • It successfully presents itself as the only valid representative of all Catholics, indeed, all Christians in the UK – at least as far as the press and politicians are concerned. 
  • It attracts support from popular celebrities. 
  • It speaks regularly about discrimination against Catholics, how marginalised a minority and about their human rights (“Catholic rights are human rights”). 
  • It says anyone raising concerns about child abuse by Catholic clergy shows hatred. 
  • It describes those who criticize it or Catholics generally as “heretics” and “hate groups” or phobic.
  • It runs schemes whereby, for money, it audits organizations for how pro-Catholic – as determined by Opus Dei – they are. 
  • It advises organizations and trains their employees on language, facilities, policies, the steps they must take – both internally and externally – to promote the faith as promulgated by Opus Dei and earn those points. 
  • It requires organizations to teach all its staff (not simply Catholic ones) to talk about their souls, use religious language in their communications and remove any language or expressions which might offend Catholics. 
  • It publishes league tables identifying which organizations are the most pro-Catholic, as decided by it. 
  • It campaigns for changes in legislation to promote its religious ideals, changes which significantly alter existing equality legislation, especially for those opposed to religion having a say in legislation or affected by the changes it lobbies for. 
  • It lobbies for the abolition of civil and same sex marriage so that marriage will be  based on Opus Dei’s understanding of the Sacraments. 
  • It advises organizations on equality law based on what it would like the law to be.
  • It provides training and information packs to be used by schools. 
  • It has a flag, special days to celebrate what it stands for and regular public events at which employees from its members dress up in its religious habits and use its symbols, on vehicles, buildings and elsewhere. 

Finally, imagine that many of the organizations where Opus Dei do this are state or state-funded organizations – the police, local authorities, government departments, grant-giving bodies and health authorities. They sign up to its creed, use its language, promote its symbols and congratulate themselves not just on not being anti-Catholic but on being proudly pro-Catholic, pro-Opus Dei. 

Reasons for worry?

You’d think, wouldn’t you, that this is a bit odd. You’d be concerned at how a particular ideology was being spread without anyone else having a say. You’d be concerned that this seems to put the rights, interests and views of one group above those of others. You’d worry that it appears to be distorting or misinterpreting equality legislation. You might even wonder at the number of law firms signing up, thinking they’d be well placed to understand the law without the need to rely on non-legal lobbyists. You’d worry that the normal space for disagreement about aims and means was being squeezed out if any disagreement or challenge or questioning was described as “hate” and those expressing such concerns as “hate groups”. Above all, you’d worry that this creates a conflict of interest between what such organizations are legally required to do for all citizens and what they have agreed to do to satisfy Opus Dei and maintain their position in its league tables. 

You don’t, of course, need to imagine any of this because it is happening now. Substitute Stonewall for Opus Dei and it pretty much describes how Stonewall currently operates. 

The consequences

Those state organizations which sign up to Stonewall’s schemes have created multiple conflicts of interest: between themselves as employers and different groups of employees and between their public duties and their legal obligations to all citizens. They have blurred the distinction between a body carrying out public functions under existing laws and campaigning lobbyists. They have failed to recognise that such conflicts of interest exist. They have failed to consider the creation of a perception of such conflicts of interest, even if that was not their intention. They appear not to understand the problems arising when a body implementing the law acts as if changes desired by a lobby group advising it had already happened. Since they have not understood any of this, they have taken no steps to eliminate or mitigate such conflicts of interest. 

This is why we get the usual cycle of some unacceptable action or comment, protest, panic by the organization concerned, withdrawal of the original comment/action accompanied by an apology blaming it all on an underling/a mistake and assurance that whatever happened was not in line with their “values”. The fundamental underlying problem and how to address it seems to pass them by entirely.

The police

Nowhere is the existence of such conflicts of interest more troubling than in the police. The police enforce the criminal law. They have significant powers over us. They have a duty to police “without fear or favour”. They need not just do this but be seen to do this. The reality of bias, the perception of a bias are damaging to proper policing. Such conflicts of interest risk damaging the rule of law and citizens’ faith in it. 

This has been made more acute by three factors: 

(1) Police misunderstanding their obligations as employers under equalities legislation.

(2) Confusing their obligations as an employer with their outward-facing public service obligations.

(3) The police’s approach to non-crime hate incidents. 

Equalities laws and discrimination

Discrimination against police officers from minorities has understandably led to counter-measures. But what the police appear to have forgotten is that the obligation not to discriminate applies to all its staff. It does not simply apply to one group with a strong lobby behind it. In following the diktats of one lobby group, the police risk behaving in a way which discriminates, whether directly or indirectly, against others. For an excellent, detailed explanation of why – and the risks involved -, see Naomi Cunningham’s blog – https://wwww.legalfeminist.org.uk/2021/02/01/submission-and-compliance/.

Public duties

This approach has extended to its public-facing duties, as a direct result of the reach of Stonewall’s schemes. The training of staff according to Stonewall’s views will inevitably affect how they carry out their duties towards the public. More explicitly, Stonewall’s schemes expressly cover “service users”. For public bodies, this means us. It is astonishing and worrying that any public body – let alone the police – should think it appropriate to allow a lobby group to dictate, influence or advise on the performance of its public functions. The police’s sole purpose is to enforce the criminal law. When it needs advice, it should obtain this from expert criminal lawyers. If it needs advice on complying with equality law, it should obtain this from expert equality lawyers. What it should not do is obtain advice or training from – or be influenced by – a lobby group primarily acting for only one of the groups it polices. What is even more worrying is that in all the time the police have been part of Stonewall’s schemes, it appears not to have obtained legal advice on whether doing so creates a conflict of interest or the perception of one and whether, if so, this creates a risk in how it carries out its public duties.

Non-crime “hate”

The final point relates to the police’s approach to non-crime hate incidents. One might ask why the police are involved at all in matters which are not crimes. Whatever the reason, they have got themselves involved in what Lord Moulton described some 90 years ago as the “realm of manners” – that space between the law at one end and free choice at the other. 

They have allied themselves closely with one lobby group and adopted its view on matters where there are both differences of opinion, a changing scientific context and legislation and case law different to what the lobby group believes or wants. In so doing, the police have put themselves in a position where those who disagree with Stonewall’s position can have little 

confidence that in any incident involving such matters the police will be – and be seen as – compliant with the law, not overreaching their powers and impartial. 

This last point was seen in the Miller case where the Court of Appeal held that police guidance to record non-crime hate incidents –

“is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”. 

A year later, the College of Policing is proposing (apparently on legal advice) guidance allowing transgender officers to search those of the opposite sex to that of the transgender officer. This appears to be a breach of the relevant PACE provisions. It is, however, consistent with Stonewall’s view that a man who believes he is a woman is one and so should be allowed to carry out an intimate search of a woman. According to reports, the guidance also appears to suggest that a refusal by a woman or request for a female officer could be classed as a hate crime. The underlying assumption appears to be that intimate searches of the public are a service which, say, women should not deny to trans-identified male officers. This is a topsy turvy approach to police compliance with a law, one brought in after miscarriages of justice and police misbehaviour to ensure that evidence is properly collected without a sexual assault being committed and with proper regard for the dignity of the person being searched who is, it should be remembered, innocent. 

We’ve been here before

The police being beholden to groups with an agenda is not a new problem. In Northern Ireland ever since its establishment, the RUC was seen as the explicitly anti-Catholic enforcement arm of a “Protestant Parliament for a Protestant people”. The bias was real and ultimately fatal to the rule of law there. More recently, the issue of Freemasonry raised similar concerns. During the 1960’s and 1970’s, concerns about corruption in police forces arose because of a perception that Masonic officers were putting the interests of fellow Masons above those of the force as a whole or their obligation to obey the law. Membership of a secret organization was eventually seen as creating a conflict of interest between a police officer’s duties and his obligations as a Mason. There is an echo of this in the way that Stonewall’s agreements with members of its schemes are not made public on the grounds of commercial confidentiality, despite the obligations they place on public servants.

Now

This time it is not whether individual officers may have a conflict of interest. Rather it is that police forces – by making themselves beholden to Stonewall’s agenda through its schemes – are explicitly putting themselves in a position where one cannot be confident that police decisions aren’t distorted by their membership of those schemes. For instance, how can women arguing for single sex spaces facing a demonstration by those demanding they include transwomen have confidence in policing of such a demo by police trained by those arguing the latter and turning up in a car painted in Stonewall colours? How can someone objecting to a potential breach of PACE be confident that they won’t be unfairly charged with a hate crime or have a non-crime hate incident recorded against their name if the police force has signed up to guidance permitting this? 

How can one have confidence that the police – or other public authorities (see, for instance, the latest furore over the withdrawal of an Arts Council grant to a lesbian organisation opposed by Stonewall) – will not, in part (maybe unconsciously), be influenced by their desire to please Stonewall? One can’t. There is a clear conflict of interest. There is certainly a perception of one. The police should never have allowed this to arise. Nor should other public authorities. Or private bodies, for that matter. But at least there we have a choice. We do not with state bodies.

It is long past the time for them to stop outsourcing their thinking to – and seeking to comply with the requirements of – lobby groups. If such bodies won’t act, the government should intervene. Conflicts of interest are the sine qua non of all scandals. This one is no longer even hiding in plain sight.

Policing boundaries- social policing and legal remedies

A common retort to the concern that self-identification threatens women’s single sex spaces is to say that legal mechanisms would still exist to protect women from men who would abuse the system and to provide redress when those protections are breached.  This argument is flawed.  It fails to take into account the practical difficulties that would arise in invoking those provisions.  It fails to recognise how social policing would be diminished and women would be compelled to lower their boundaries.  

What is social policing? Any woman will recognise the steps that we take to keep ourselves safe in public spaces: telling a friend when we are making a journey alone, pretending to be on the phone when in a train carriage with a strange man, crossing the street if a man is walking behind us are but a few of the behaviours that many women practise as a matter of reflex.  Included in these behaviours are measures related to communal areas: if we see a male-bodied person in the women’s changing rooms at the gym we will challenge him and ask him to leave, we will tell a member of staff, we will warn other women entering the room, we will postpone undressing until he flees in embarrassment at his mistake or is removed by the gym staff. The chances are that it is an innocent mistake and that man poses no threat to our safety, but just like crossing the road when a man is walking behind us, we would rather not take the chance.

Self-identification forces us to lower our boundaries around all male people, whether genuine transwomen or men who would pretend to be one.  It asks us to mentally place that man in the category of “woman: unlikely to be a threat” rather than “man: a potential risk”, on nothing more than his word that he is the former.  This is not about whether transwomen are a threat to other women; it’s about the fact that the removal of objective criteria for what it means to be a transwoman makes it impossible in that scenario to draw that distinction.  If the response to “This is the ladies, please can you leave” is “I’m a woman”, then challenge to that assertion becomes difficult. Even the gym staff will probably have been coached that it would be discriminatory to ask a transwoman to provide a copy of their GRC, so best not ask the question.  It might be a lie, but who wants to be seen as a bigot for falsely challenging and humiliating a genuine transwoman? We saw this exact scenario play out in the Wi Spa incident.  Better not to challenge, not to tell the staff, not to warn other women and to think twice about returning to that gym.

What legal redress could individuals or businesses invoke to protect single-sex spaces?  Let us look at an example of a gym changing room.  

In criminal law, section 66 of the Sexual Offences Act 2003 creates an offence of ‘Exposure’ where a person (a) intentionally exposes his genitals, and (b) intends that someone will see them and be caused alarm or distress.  If a man is encountered in the female changing rooms exposing his genitals, a prosecution would be reasonably straightforward: the lack of legitimate purpose in being in a state of undress in that place creates a presumption that he would know that a woman would be likely to be caused alarm or distress by seeing male genitals.  Challenging a defence that he was acting with benign intent would not be difficult.  Little would be required from a prosecution witness other than to testify that they saw male genitals and that the man concerned did not immediately act to remedy his mistake.  

However, if that same person states that he is  a woman and has a legitimate purpose in using the changing rooms to get changed, then a prosecution becomes more difficult. The presumption of mal-intent falls away.  That is not to say that a prosecution is impossible: as in the WiSpa incident, if the intruder is in a state of arousal then it would be hard to argue lack of intent. But it is likely that the prosecution witness would face much more rigorous questioning by the defence: What did you see? How long for? Are you sure (s)he was aroused? Aren’t you just a bigot for being alarmed at sharing a changing room with this poor transwoman who just wanted to get changed?  

A two-tier system for offenders is effectively created: a presumption of mal-intent if the man identifies as such, and no presumption if he identifies as transgender; but in either case the women he encounters will have observed exactly the same male body.  It is well known that ‘minor’ sexual offending such as flashing is frequently a precursor to more serious crimes.  Self-ID creates a situation where men can commit those offences with impunity.

Civil law, and specifically the exceptions contained in part 27 of Schedule 3 of the Equality Act 2010 permit organisations such as gyms to provide single-sex facilities.  They are also likely to have a contractual term for the use of their gym that members are not to harass, alarm or intimidate other users, and in theory any member beaching this condition by using changing facilities designated for the opposite sex could be banned from the gym and refused re-entry without the gym unlawfully discriminating against him.  

However, as our earlier blog explains, anything other than a blanket enforcement of the single-sex space is likely to be unworkable in practice.  Not only does this create a minefield for the gym workers to navigate, but it makes it difficult for the female patrons to object as well.  It becomes impossible for a female patron to act on those feelings of unease that have caused many a woman to take precautionary measures: instead action can only be taken once the unwelcome conduct has taken place.  

There is no obvious civil law route for a woman to take direct action against a man for using female spaces or services.  Her best course of action would be to bring a claim for direct or indirect discrimination against the service provider in relation to her protected characteristic of sex and/or where applicable, her religious belief.  She could argue that the failure to provide appropriate single-sex facilities to change subjects her to a detriment upon which a claim for indirect discrimination can be founded.  If (as seems to be an emerging trend) the serviced provide designates the facilities as ‘male’ and ‘gender neutral’, she may have a claim for direct discrimination. 

But resorting to the law is expensive, time-consuming and can be emotionally challenging.  Some women will simply limit their engagement with sports, with recreation and with spending time outside of the home.  

Sex matters in drawing comparisons

How a false assumption led an employment tribunal to wrongly find an NHS Trust guilty of discrimination

A guest post by Anya Palmer, barrister

In a recent case, V v Sheffield Teaching Hospitals NHS Foundation Trust, the Leeds employment tribunal cleared the employer and several of its managers of a large number of claims of disability discrimination, gender reassignment discrimination, harassment and victimisation.

However, the tribunal concluded that the employer did discriminate against the Claimant when a manager asked the Claimant questions about removing his underwear at work.

In its judgment the tribunal describes the Claimant as “a transgender woman” and refers to him throughout as “she”. I will not be doing that, because in my view the use of this polite fiction directly led the tribunal to get the Claimant’s sex wrong and therefore to deploy the wrong comparison and get the law wrong.

We are told in the judgment that the Claimant was “currently transitioning”, but no information is given as to what that actually meant or how far the Claimant had got with it.

However, we are told that at the Claimant’s request, staff were told in writing that the Claimant would be joining their team, that the Claimant was transitioning from male to female and that he did not want to be asked questions about that. They were also told that the Claimant would be using a cubicle in the women’s changing rooms and did not want to be asked questions about that either.

It seems likely, therefore, that this was a case where it would be obvious to everyone that the Claimant was not a woman, and the Claimant’s colleagues were being warned that they should play along and not object or ask questions.

The judgment says the Claimant had been the victim of arson attacks outside work. Here is a BBC interview with a transgender person in Sheffield who was the target of an arson attack in 2019. It seems quite likely that “Amy” in this interview and the Claimant are the same person. The arson attack is appalling. But if this is indeed the Claimant, he does not (as of June 2020, about the same time as he started work for the Trust) remotely pass as female, and this is who the women were being told they had to share a changing room with and not ask questions.

The employer organised bespoke training on transgender and gender identity issues for everyone in the catering unit where the Claimant would be working. The tribunal notes that during the training some concerns were raised by female staff:

Some expressed concerns, mainly female members of staff worried about sharing the ladies changing room with a transgender woman. Mrs Edwards tried to address those concerns by explaining that there was no evidence of transgender women being a threat or causing any issues in the workplace, and that there needed to be a balance of rights and respect for someone who wanted to live her life completely as a woman.

We only have this third-hand description of how the women themselves expressed their concerns. It seems unlikely that the women expressed their concerns by referring to the claimant as a “transgender woman”. It is far more likely that they expressed concerns that they were being asked to share the women’s changing room with a man. But there are no findings on what the women themselves said.

What is clear is the women were not being asked if they agreed to the Claimant using the women’s changing room. They were being told that he could and would. Lip service was paid by the manager who delivered the training to a “balance of rights”, but it is clear that their right to any say in the matter had already been written off. 

It is not clear why, because it is not the case in law that a trans-identified male at an early stage in their transition must be allowed to use the women’s facilities: see the Court of Appeal judgment in Croft v Royal Mail Group plc [2003] EWCA (Civ) 1045. But perhaps the Trust was taking advice from people who would not mention that case, who would advise that the Claimant must be treated as if he were a woman from the outset.

*****

The events that led to the finding of discrimination took place a year later. On 10 June 2021 the Claimant spoke to a Mrs Townsend, a Catering Assistant, asking to go home as he said he felt hot and sweaty and this was making him feel ill. He told her he was so hot he had taken his underwear off, and made a wringing motion with his hands. 

Mrs Townsend went to see Mrs Hawkshaw, Catering Manager, because she herself did not have the authority to allow the Claimant to go home, and she recounted the whole conversation to Mrs Hawkshaw. She then made a note of the conversation.

In tribunal the Claimant denied making the remark or the gesture, but the tribunal preferred Mrs Townsend’s evidence:

137.   … She had no issue with the Claimant and no reason to make this account up. She made a note of the conversation on the day. We found that it was accurate. It seemed to the Tribunal that the Claimant did have a tendency to blur appropriate boundaries, and perhaps to “overshare” with her colleagues. We noted that she denied making the comments and gesture as soon as she was asked about it a few days later, but we still found that it was more likely than not that the Claimant had made the comment and gesture.

The Claimant was then off work until 16 June 2021, when Mrs Hawkshaw held a return to work interview with the Claimant and told him he would have to attend a stage 3 attendance management meeting. The Claimant reacted very badly to this, going and shouting in front of staff and customers that he would take the Trust to court.

On 25 June 2021, Mrs Hawkshaw had another meeting with the Claimant to address various issues, and in this meeting she asked the Claimant about the underwear remark and the wringing gesture.

It seems that what moved Mrs Hawkshaw to ask questions about that now, two weeks after the Claimant had made the remark, was that the day before this meeting, Mrs Hawkshaw had received a report that the Claimant had been seen “naked from the waist down” in the women’s changing room. Mrs Hawkshaw had been given a statement about this. Unfortunately the tribunal does not tell us any more about this incident, which seems like it might just be relevant to why Mrs Hawkshaw questioned the Claimant about removing underwear at work, as indeed the tribunal itself concludes.

Mrs Hawkshaw did not ask the Claimant directly about the changing room allegation, but she did ask the Claimant in general terms whether he took his underwear off at work.

The Claimant found these questions embarrassing, and subsequently raised a grievance, and later brought a claim of direct discrimination based on gender reassignment in respect of having been asked them.

The tribunal dealt with this claim as follows:

152. …the Tribunal found that the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that the reason Mrs Hawkshaw had asked her those questions about her underwear was because she is a transgender woman. Those facts were:

152.1 The questions asked were not simply about what had happened on 10 June 2021 but were more general questions about whether the Claimant wore or changed her underwear at work and whether she was ever inappropriately dressed at work.

….

152.4    Mrs Hawkshaw had received a report about the Claimant being naked from the waist down in the changing room before asking the questions. She did not mention that specifically, but the questions she asked seemed to be connected with that as much as with the conversation with Mrs Townsend.

152.5     A concern about the Claimant’s state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman. This was a communal changing room with a shower cubicle. It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room. [emphasis added]

153.   The Tribunal therefore found that the burden shifted to the Trust to prove that the reason for Mrs Hawkshaw’s line of questioning was not the Claimant’s transgender status. The Trust did not do so…. The Tribunal therefore concluded that Mrs Hawkshaw asked the questions because of a concern that the Claimant as a transgender woman might be in a state of undress in the female changing room. That was because of gender reassignment. Mrs Hawkshaw would not have asked the questions of a cisgender woman. [emphasis added]

I will argue that this was the wrong comparator. To do so I first need to explain how comparisons work in discrimination law.

*****

To show that he or she has been discriminated against because of a protected characteristic, a claimant needs to show that he or she was treated less favourably than a comparator who does not have that protected characteristic.

So if you are a woman claiming sex discrimination, you need to show that a man was treated more favourably in the same (or not materially different) circumstances.

Or if there isn’t an actual comparator, you can argue (based on evidence) that a hypothetical man would have been treated more favourably in the same circumstances.

As a matter of logical inference, if a woman was treated less favourably than a man was treated (or a hypothetical man would have been treated) in the same circumstances, the reason for the less favourable treatment is the woman’s sex.

And so it goes for each of the nine characteristics that are protected under the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The requirement that the circumstances must be the same, or not materially different, is an important feature of this comparison exercise. You have to compare like with like, and this is expressly stated in the Equality Act 2010 (and always has been since the Sex Discrimination Act 1975).

Section 23(1) of the Equality Act 2010 provides as follows:

(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

Section 13 defines direct discrimination, so this requirement applies in any case where direct discrimination is claimed.

In Shamoon v Chief Constable of the RUC [2003] ICR 337 HL, the claimant, a senior police officer, brought a claim for sex discrimination, and she sought to compare how she had been treated by her line manager with how two male colleagues had been treated. The Northern Ireland Court of Appeal held that the two male officers were not valid comparators, because there was a material difference between her circumstances and theirs – there had been complaints about the Claimant, but not about the comparators. This was relevant to her line manager’s treatment of her. The House of Lords upheld that conclusion.

In the House of Lords, Lord Scott of Foscote explained the way that a comparison is used to establish direct discrimination, and he then said this:

110.  In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. [emphasis added] 

The way this applies in the case of a trans-identified male who has not obtained a Gender Recognition Certificate (GRC) was confirmed by the High Court in R (on the application of Green) v Secretary of State for Justice.

The claimant, a male prisoner serving a life sentence for murdering his wife, had recently decided he wanted to undergo gender reassignment, and he sought judicial review because he was refused permission to obtain “wigs, intimate prostheses and tights” (for security reasons). The claimant complained that this was in breach of prison service policy, and also complained that it was unlawful discrimination contrary to the Equality Act.

The judge dealt with the discrimination part of the claim as follows:

65.     This is a direct discrimination claim under section 13(1) of the Equality Act 2010 and, as the Governor is exercising a public function, section 29(6) engages.

66.     A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic — gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.

67.     It seems to me that I must approach the discrimination issues in this way:

(1)  Has the claimant been treated less favourably by the Governor than he would treat others in the exercise of his public function?

(2)  If he has so treated the claimant, was this due to the claimant’s gender reassignment?

68.     Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group plc [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman — but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women — until they become women.

69.     A male prisoner (who wishes to remain male as most do) does not need to express his gender identity in any purposeful way. He does so innately through the male clothes he wears and certainly does so via prison clothing. Transsexual prisoners are treated differently (and wish to be so) and as such have a number of advantages in terms of clothing and lifestyle not available to the remainder of the male prison population absent privileges.

70.     I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner — indeed the reverse. Consequently, the second question I posed does not arise.

In short: the correct comparator for a trans-identified male who does not have a GRC, and is claiming gender reassignment discrimination, is a male who does not identify as trans.

The correct comparator is a person who does not have the protected characteristic of gender reassignment. But the comparator should be the same in all other material respects. So if the claimant is male, the comparator must also be male.

*****

How do we apply Shamoon and Green to the facts in V v Sheffield Teaching Hospitals?

The Claimant in V was not a woman, however managers and the tribunal refer to him. He was born male. He remained male. The fact that he now identified as “a transgender woman” did not change this. Self ID is not yet the law in this country, however much Stonewall and others try to make out that is the case.

The judgment does not say whether the Claimant had obtained a GRC, but if he had obtained one it seems likely that he would have mentioned that in evidence and relied on it, that the tribunal in turn would mention that in its fact finding, and indeed the tribunal might have considered in its reasoning what effect, if any, that had when making the comparison.

So it seems highly likely that the Claimant did not have a GRC and remained legally male, as well as biologically male.

The correct comparator would therefore be a male who did not have the protected characteristic of gender reassignment.

So why did the tribunal draw a comparison between how the Claimant was treated and how a “cisgender woman” would have been treated?

There are two possibilities here:

(1) The tribunal did not understand that the comparator should be the same as the Claimant in all respects except for the protected characteristic, and so the comparator should be of the same sex as the Claimant; or

(2) The tribunal wrongly assumed that the Claimant was female, and therefore concluded the comparator should be female.

The tribunal does not give any explanation as to how it decided that the correct comparator was a “cisgender woman”, so it’s difficult to say for sure which of the above is the answer, but I strongly suspect the answer is (2).

The tribunal is very likely to have considered the Equal Treatment Bench Book (ETBB). This is a sort of diversity and inclusion handbook for the judiciary. It provides guidance on how to run the hearing. It is not a guide to the law. It has no status in law. And yet it is highly influential. It advises courts and tribunals to always use a trans person’s chosen name and pronouns regardless of the reality or their legal status:

It should be possible to respect a person’s gender identity and their present name for nearly all court and tribunal purposes, regardless of whether they have obtained legal recognition of their gender by way of a Gender Recognition Certificate.

In other words – the court or tribunal is advised to be guided by self ID. If a male person says he identifies as a woman, then regardless of whether he has obtained a GRC, regardless whether he has even undergone any physical transition, the court should refer to him as a woman and use the pronouns “she” and “her.”

It’s the same advice that the Trust gave to its employees. Act like V is a woman. Don’t ask questions.

Trans women are women.

The problem is that this is, essentially, a political position which does not represent the law anywhere in the UK. Self ID is not the law. But the idea that a man is a woman if he says so is being pushed by activists to managers and decision makers in institutions up and down the land. It is happening in the NHS. And it is happening in the judiciary. (For a full analysis of the problems with the Equal Treatment Bench Book in this respect, see Prejudging the Transgender Controversy by barrister Thomas Chacko.)

There is no reminder to the judges who consult the Equal Treatment Bench Book that there may be cases in which it falls to them, as part of their job, to consider what sex the claimant is, and at that point they need to forget about polite fictions and determine whether the claimant, as a matter of fact and law, is a man or a woman – however unpalatable it may be to the claimant if the answer is that the claimant is male.

(Nor is there any warning to counsel that the judge may consult the ETBB. In the preliminary hearing in Forstater v CGD Europe on whether the claimant’s belief was a protected belief, I was not aware that the employment judge had consulted the ETBB until I read about that in the judgment. I had no opportunity to address the judge on that. Obviously this should not have happened, but happen it did. By way of advice to any counsel dealing with these cases – be aware that the judge may consult the ETBB without telling you. If there is anything you want to say about the ETBB, make sure you say it. Don’t wait to be asked.)

I suspect the tribunal in this case did as it was told by the ETBB (and/or any diversity training the judge may have had) and referred to the claimant throughout as “a transgender woman” and using the pronouns “she” and “her”. And in doing so it forgot that this polite fiction did not mean the claimant was in fact a woman.

So when it came to look for a non-transgender comparator, it assumed the comparator would be a non-transgender woman.

*****

How did this affect the tribunal’s conclusions on this issue?

The tribunal concluded that

152. … the Tribunal found that the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that the reason Mrs Hawkshaw had asked her those questions about her underwear was because she is a transgender woman... [emphasis added]

152.4 Mrs Hawkshaw had received a report about the Claimant being naked from the waist down in the changing room before asking the questions. She did not mention that specifically, but the questions she asked seemed to be connected with that as much as with the conversation with Mrs Townsend.

152.5 A concern about the Claimant’s state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman. This was a communal changing room with a shower cubicle. It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room. [emphasis added]

153. The Tribunal therefore found that the burden shifted to the Trust to prove that the reason for Mrs Hawkshaw’s line of questioning was not the Claimant’s transgender status.

The flaw in the tribunal’s reasoning is obvious once we consider the question the tribunal should have asked:

Was Mrs Hawkshaw likely to have been concerned about a non-transgender male in a state of undress while using the women’s changing room?

Well of course she would. Because it was a women’s changing room, and the non-trans male comparator is… male.

(One could posit as part of the relevant circumstances for making this comparison, that the comparison should be with a non-transgender man who, for some exceptional reason, had been given permission to use the women’s changing room. Even so, it is obvious that if that man were then seen “naked from the waist down” by women using the changing room, that would have been reported to Mrs Hawkshaw, and she in turn would have had concerns, especially if she knew that he had also, on an earlier occasion, told a female supervisor that he was so hot he had removed his underwear, and had made a wringing motion.)

If the correct comparison is used, I cannot see how the tribunal would have concluded that the burden shifted to the Respondent to explain the difference in treatment. There is no difference in treatment once the proper comparator is used. Any report of a man making comments to female colleagues about removing his underwear and then seen naked from the waist down in the women’s changing room would have given rise to the same concern.

The respondent NHS Trust therefore has, in my view, a clear ground of appeal in respect of the one finding of gender reassignment discrimination made against it.

I hope the Trust will appeal. It is only by challenging decisions like this one on appeal that tribunals will hopefully learn to think through what does and does not properly constitute gender reassignment discrimination.