discrimination -

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:

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.

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:

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.”
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.”
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]

152.5 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.

Grammar and grievance

A tweet from Legal Feminist disagreeing with Acas advice on pronouns provoked a storm…

[image: taken from the illustrations to the Screwtape Letters]

In civilised life domestic hatred usually expresses itself by saying things which would appear quite harmless on paper (the words are not offensive) but in such a voice, or at such a moment, that they are not far short of a blow in the face… You know the kind of thing: “I simply ask her what time dinner will be and she flies into a temper.” Once this habit is well established you have the delightful situation of a human saying things with the express purpose of offending and yet having a grievance when offence is taken.
CS Lewis, The Screwtape Letters (in which an experienced Devil coaches his nephew in the art and science of temptation)

The other day, Acas tweeted out the suggestion that putting pronouns in email signatures could help create a more open and inclusive workplace. Legal Feminist disagreed:

There followed a storm of engagement, unprecedented for the Legal Feminst account: over 600k impressions, over 500 quote tweets and nearly as many retweets. I think the quote tweets in particular are revealing, and they are the main subject of this blog.

But before I get to that, I want to explain the context a bit; this will be old hat for many of my readers.

The gender war: a quick primer

There are two sides in this war. They call each other various names, but we can call them sex deniers and gender criticals.

Sex denialism claims that sex doesn’t matter. Whether you’re a man or a woman depends not on your body, but on your inner sense of identity. A male person who says that he is a woman should be treated, referred to – and even thought of – as a woman for all purposes; and vice versa. Various things follow. If a man wants to join a support group for female survivors of male sexual violence, then provided only he says he’s a woman, he must be welcomed in. If a man with fully intact male genitalia wants to undress in the women’s changing area at the swimming pool, anyone who objects is a pearl-clutching prude and a bigot. If a mediocre male athlete wants to compete in women’s events and start breaking records and winning medals, the women should move over. If a male doctor wants to identify as a woman, his true sex is none of his patients’ business – even where intimate examinations are concerned. If a rapist decides he’s a woman and wants to be moved to a women’s prison, that’s his right too.

Gender criticals think biological sex does sometimes matter: for healthcare, for safeguarding, for everyday privacy and dignity, for fairness in sport, and so on. They think sex is determined by whether you have a male or a female body, and that it’s no more possible literally to change sex than to change species.

The attentive reader will have noticed that the “gender critical” viewpoint is made up of commonsense propositions that until about ten minutes ago no sensible person – whether on the political left or right – would have dreamed of contesting. The sex denialist beliefs are novel, and surprising.

Pronouns

So where do pronouns come in?

This takes us to the manner in which sex denialism has been promoted. You can’t defend irrational beliefs with reason. By and large sex deniers don’t try: instead, their strategy has been to attempt to leapfrog over the usual campaigning, lobbying, arguing, persuading phases of bringing about profound cultural and legal change, and to pretend instead that the desired outcome is already accepted by all right-thinking people – and to silence dissent by visiting dire consequences on anyone who questions that claim. That, I believe, is the whole reason for the vitriol and toxicity that surrounds this subject. Anyone who points out the absurdity of propositions like “some women have penises” must be howled down as a bigot, shamed, no-platformed, hounded from her job, kicked off her course, etc. That way, any doubter who lacks an appetite for martyrdom will be persuaded to steer clear of the whole debate – and insist if pressed that this subject is all too complicated and toxic, and they simply haven’t found the time or head-space to form a view.

The more insidious part of the strategy is the first part: the pretence that the contentious propositions that form sex denialism are already accepted without question by all educated, right-thinking people. Sex deniers make determined efforts to weave their claims seamlessly into our language and the fabric of our workplace culture, with the aim of converting contentious claims into the kind of tacit knowledge that doesn’t even need to be stated or formulated.

Acas’s advice

So what does Acas mean when it says announcing your pronouns can help create a more “open and inclusive” workplace? Inclusive for whom, and how? Your colleagues and work contacts will mostly know whether you’re male or female, if they need to. If you have an androgynous name and you particularly want to announce your sex, adding a title after your name will clear up any ambiguity with much less accompanying baggage than pronouns. But why do we even need to do this? Those who reply to my emails don’t need to know whether I am female or male. The truth behind pronouns is that their “baggage” is the point. The mechanism by which pronouns are supposed to make the workplace more open and inclusive is that they demonstrate your support of sex denialism, but without requiring you to say anything explicit. They bolster and entrench the idea that gender identity is more important than sex, while maintaining the appearance of a trivial, harmless courtesy.

That’s why I think our tweet was right. The claims of sex denialism are far from universal: on the contrary, they are bitterly contentious. By putting pronouns in your signature you raise a flag that aligns you publicly with one side – and against the other – of the gender war. If you’re a Catholic pupil at a school in Glasgow where “No Pope!” is the standard greeting (I am not making this up – I have it on reliable authority that it’s an example drawn straight from life), you’re put to an invidious choice: either play along – or out yourself as a Catholic or Catholic-sympathiser. No doubt the greeting makes the environment feel welcoming and inclusive for the children of Rangers supporters; less so for young Celtic fans.

Given the bitterness of the dispute – and especially given the many occasions on which gender critical individuals have had their jobs, their livelihoods or even their physical safety threatened – being put to the parallel choice by pronoun rituals is not going to make the workplace feel open and inclusive for gender-critical employees.

An accidental behavioural experiment

Are you feeling sceptical? Thinking maybe I’m overreacting, over-interpreting a harmless bit of politeness? I sympathise. When I first came to these debates, that’s what I thought, too. Why’s everyone getting so het up about language? Can’t we just be polite – can’t we use the words preferred by people who care passionately about words, and focus on what matters?

If that’s where you are – re-read the short extract from The Screwtape Letters at the top of this blog, and consider the manner in which the original tweet has operated as an accidental behavioural experiment.

On the face of it, it’s quite a dryly techie tweet from a legal account, disagreeing with a bit of HR advice from Acas. But it’s had an extraordinary level of engagement: at the time of writing, nearly 700k impressions, hundreds of retweets and quote tweets, and nearly 3,000 likes.

So what’s going on? Why has it attracted so much attention?

I think the clue is in the quote tweets. They’re almost all hostile, and Twitter is a rage engine. Most fall into one of two categories: either words to the effect “What’s your problem with this trivial courtesy? Get a life!” or else “Ha ha nasty TERF bigots deserve to feel excluded and fearful.” I’ve done a rough-and-ready analysis, sorting about the hundred or so of these quote tweets into categories. I counted 66 that fell into the “ha ha nasty terven” category, 26 into the “harmless courtesy” camp – plus two that agreed with the original tweet and a few I couldn’t easily classify.

The typical HR response to any push-back against pronoun rituals is of the “harmless courtesy” flavour. Why, they ask, are you making such a big deal of this little thing? Why can’t you just be kind and polite like everyone else? Or at least not make an ungracious fuss if your colleagues want to be kind and polite! If you argue that pronoun rituals are an attempt to make a particular highly contentious belief system seem so mainstream that it can be treated as the default – and shame anyone who doesn’t subscribe to it – you’ll be met with polite bafflement. “What makes you think it’s that? It’s just a trivial courtesy that will make a marginalised group feel a little bit more comfortable. How much can it possibly cost you?”

This type of response was well represented in the sample I looked at. Here’s a typical one:

This is a perfectly understandable take from decent, well-intentioned people who haven’t given the matter a great deal of thought. But it’s hard to sustain in the teeth of the evidence provided by the other, much larger category of quote tweet. There are more than twice as many of these as from team “harmless courtesy”, and they make my case for me vividly – sometimes in unmistakably menacing terms. Here’s a small sample of that type:

This was a reply, not a quote tweet

The first of these is admirably clear: “MAKE THE BIGOTS STFU [for the pure in heart, that translates “shut the fuck up”]. THAT’S THE BLOODY POINT.”

This is the heart of the matter. A handful of responses of this type might have been explained away as the bad behaviour of a few hotheads. But the numbers involved make that impossible to sustain.

A clear majority of the hundreds who have engaged with this tweet by quote-tweeting it are saying in terms that the point of including pronouns in email signatures is to make “TERFs” feel excluded and fearful.

The quote tweets have vividly dramatised both aspects of the technique recommended by Uncle Screwtape in the extract at the start of this blog: one group (Zoë Irene et al) boasting that they are indeed saying something with the express purpose of giving offence – while the other group takes on the role of maintaining a sense of grievance when offence is taken.

Expressing loathing and contempt for those who hold gender-critical views may be fashionable; it even seemed to have a degree of judicial sanction until the first instance decision in Forstater was corrected on appeal. But the lesson from the judgment of the Employment Appeal Tribunal in Forstater needs to sink in. Gender-critical beliefs are within the protected characteristic of “religion or belief” (so too, probably, is sex denialism); harassing or discriminating against your employees on grounds of their protected beliefs can prove expensive. One of the things to be taken into account by a court or tribunal in determining for the purposes of a claim under the Equality Act whether conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them is whether it’s reasonable for it to have that effect. The fate of this tweet could itself provide telling evidence.

But Is It Cricket? Giving Women A Sporting Chance

Lia Thomas, a swimmer, born male, is now routinely winning women’s swimming races in the United States. Soon we are bound to see a similar situation in the UK. Do the female athletes who lose team medals and opportunities in these situations have any legal recourse?

I think they may have. I’m going to consider a hypothetical.

I am consulted by Jane, a top female sports woman. She is third best in the country in her sport, which combines speed, strength and skill. Normally this means she makes the big competitions for her home nation, England as there are three places in the team. This year the rules were changed to allow trans women to compete in the women’s competition if they met a requirement to lower testosterone to a certain level for one year. As a result, May, a trans woman, is eligible for a place on the women’s team in Jane’s sport. May matured through male puberty before transition, and was an elite male athlete in the same sport as Jane, and under the new rules is certain to make the top 3. Jane, as the fourth-placed athlete in this event, will miss out on competing for her country. She feels the rules to be unfair and she will lose out financially and in sporting terms.

I am not in this piece going to discuss the merits of Jane’s view, but how a claim under the Equality Act would be framed.

I will assume the identity of the organisation she will challenge is clear and her claim is in time. I will also assume the organisation is not a public body so PSED not engaged, but the competition organiser is a provider of services to the public, so Jane can bring her claim in the County Court in England and Wales or the Sheriff Court in Scotland under part 3 of the Equality Act.

So, with any claim where the problem is a rule (or rule change), the most obvious starting point is indirect discrimination, under s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

In this case we have a “provision, criterion or practice” of allowing not just biological females into the sport but also MTF trans identifying people who meet certain criteria relating solely to testosterone levels.

The rule applies to all competitors, whatever their protected characteristics. It will be indirectly discriminatory on grounds of sex if it puts the women to whom it is applied at a particular disadvantage compared to the men to whom it is applied; and puts Jane at that disadvantage; and the competition organiser can’t show that it is a proportionate means of achieving a legitimate aim.

Does it put Jane, as a biological women, at a particular comparative disadvantage? It doesn’t have to be all or even most women. I suspect she would point to evidence that she, as with the average biological woman, is likely to have smaller heart, lung capacity, shorter limbs, difference in pelvis, etc than a comparable trans woman who had gone through male puberty. It can even affect only a few women, as long as there is a causal link to the protected characteristic (this is known as small group disadvantage).

Jane’s argument would presumably be that the difference in performance is so great between the average elite athlete female and the average elite athlete male who has gone through male puberty (even those whose testosterone is lowered) that it makes the rule inherently discriminatory.

So her argument is she is put at that disadvantage.

So then the onus is on the organisation who made or apply the rule to show it is “a proportionate means of achieving a legitimate aim”.

Obviously a court would consider all the technical, sociological, scientific evidence for and against such a rule.

Now this is where s 195 of the Equality Act comes in.

In discrimination law, the starting point for any rule generally is no discrimination at all. So one category open for all. However, that would be wholly unworkable. It would mean no Paralympics, no women’s sport or no age-restricted events. So Equality law recognises that it is legitimate to impose some categories to allow groups who would always lose if young, non disabled men could always compete, to limit their events to people of a particular protected class.

S195 Equality Act identifies how one set of categories, relating to sex is permissable:

195 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

Ignore the reference to gender, technically they mean sex.

Whilst this, on the face of it look permissive, when considered within the context of an indirect sex discrimination claim, it could be a part of the duty not to indirectly discriminate against biological women. It relates to the issue of whether the rule is determined as “a proportionate means of achieving a legitimate aim”. The onus is on the sports body to show that it is.

The fact that s195 is written into the Equality Act is a strong indication by Parliament that use of such an exception is not only okay but could be necessary to achieve fair competition. Consideration of why the sports organisation did or didn’t use the exception(by reference to strong evidence from consultation, research and analysis from all potentially affected people) will be key.

I cannot predict how any particular claim might be resolved (though studying the recent World Rugby process here for determining categories is instructive). But given that women’s sport has for the first time started to be commercially important, it is very likely that a claim for indirect sex discrimination will be made soon.

If I were Ruler of the World….(part 1)

On twitter, after a period of great exasperation I wrote a thread that started: “I am coming to the view that, if or when I am ruler of the world, anyone who wants to speak about UK Equality^[1] law matters on social media has to first sit an exam which I will set.”

I then set out a list of six questions to be answered, in this mythical situation. Then I promised to provide suggested answers, so here goes with answers 1 and 2 (I will answer the others in later blogs):

1. What are the nine protected characteristics?

In the Equality Act 2010, nine characteristics were identified as ‘protected characteristics’. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health. They are:

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

They are then defined in ss5-12 and 17 and 18 of the Act.

It was pointed out by my good friend, lawyer Jo Chimes that, as I mentioned UK, there is a 10th in Northern Ireland, namely political opinion (see The Fair Employment and Treatment (Northern Ireland) Order 1998).

So, if you want to bring a claim under the Equality Act you have to show how the conduct complained was linked to one of the protected characteristics; and how you are protected by the Act.

2. What are comparators and why are they important?

If you want to show you’ve suffered unlawful discrimination or bring an equal pay claim, you need to compare your treatment with the treatment of someone else who doesn’t have the same protected characteristic as you. The Equality Act calls this person a “comparator”.

So, a women arguing she was overlooked for a payrise because of sex discrimination would need a man as a comparator. If arguing it was because of her race, it would need to be someone not of her race and so on. You cannot use someone who shares your protected characteristic as a comparator.

In direct discrimination claims (s13), you have to show evidence of less favourable treatment (because of a protected characteristic) than a valid comparator. The comparator can be a real person, similar in all material circumstances but who doesn’t share your PC, or a hypothetical comparator (a thought experiment based on what it is likely to have happened in the same situation if there was a real comparator). Lawyers in these cases can spend considerable time arguing about what is a valid hypothetical comparator for the particular circumstances.

In Chapter 3 of the Act, equal pay claims require a real comparator; so a hypothetical comparator is not allowed. There is some concern that if gender (actually sex) self ID is introduced, this could defeat an otherwise valid, individual equal pay claim.

In indirect discrimination claims (s19 ) and duty to do reasonable adjustments (s20), comparators are also required but in a way too complex for this introductory exam.

So, those are my suggested answers. Will post parts two and three, when I get some time.

^[1] [1] Ive correct my spelling mistake from the original

The new interim version of the Equal Treatment Bench Book:

A significant step forward in its guidance on ‘Trans People’, but a long way still to go

A Guest Blog By Maureen OHara. She is a legal academic and former solicitor, who is doing research into the impact on women’s rights of the adoption of gender identity theory by criminal justice agencies

In December 2021 a new interim version of the Judicial College’s Equal Treatment Bench Book (ETBB) was published. Its guidance on ‘Trans People’ in chapter 12 includes significant amendments which take account of some of the criticisms of earlier versions made by gender critical feminists and lawyers.

These criticisms relate to broadly four areas, which are compulsion in relation to the use of the preferred pronouns and modes of address of trans-identifying parties to court proceedings; the adoption of tenets of gender identity theory as if they were fact; the implementation of self- definition of ‘gender identity’ in court proceedings; and the lack of transparency about who contributes to the ETBB’s content. Some of these criticisms have been partially addressed in the new version of the ETBB, while others have not.

In August 2021 a group of practising lawyers and legal academics wrote to the Lord Chief Justice expressing concerns about the previous ETBB guidance. The Lord Chief Justice passed our letter to the ETBB’s Editorial Panel for consideration. The text of the letter set out below. Some signatories’ names have been removed because they did not want them made public.

The revised version of the ETBB has taken on board some of the concerns the letter raised, particularly in relation to the treatment of witnesses giving evidence about their experiences of sexual and domestic violence.

In relation to the use of preferred pronouns, the previous version of the ETBB, published in February 2021, stated:

‘‘It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns. Everyone is entitled to respect for their gender identity, private life and personal dignity.’’ (p. 325)

Neither the February 2021 version of the ETBB nor previous versions which included this requirement, provided any guidance about how it should be implemented in practice in relation to witnesses other than those who identify as transgender, or about how judges should treat witnesses who perceive defendants in terms of their sex rather than their ‘gender identity’.

Some judges interpreted the guidance as requiring them to compel witnesses to use the preferred pronouns of defendants and other parties to proceedings who identify as transgender. This had particularly serious implications for witnesses who were giving evidence about traumatic events, such as being subjected to physical and sexual violence. Previous versions of ETBB did not address the impact on these witnesses of being required to describe a defendant in criminal proceedings, or an alleged perpetrator of domestic abuse in family proceedings, in ways which amount to a denial of their own perceptions of reality. The potential impact of the earlier guidance on complainants in criminal trials is discussed in this journal article which I wrote in 2019.

This account of being instructed by a judge to use a defendant’s preferred pronouns was given by Maria MacLachlan, who was assaulted in 2017. One of her attackers, Tara Wolf, who self-defined as a ‘trans woman’, was convicted of assault by beating in April 2018.

The revised ETBB recognises for the first time that witnesses have a right to refer to trans-identifying people using pronouns which align with their biological sex, and acknowledges that there may be circumstances where this is required by the interests of justice.

Paragraph 26 of chapter 12 states,

“There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status, clash with the trans person’s right to privacy. It is important to identify such potential difficulties in advance, preferably at a case management ^[1] stage, but otherwise at the outset of the hearing. A decision would then have to be made regarding how to proceed, bearing in mind factors such as:

…Why the witness is unwilling or unable to give evidence in a way which maintains the trans person’s privacy. For example, a victim of domestic abuse or sexual violence at the hands of a trans person may understandably describe the alleged perpetrator and use pronouns consistent with their gender assigned at birth because that is in accordance with the victim’s experience and perception of the events. Artificial steps such as requiring a victim to modify his/her language to disguise this risks interfering with his/her ability to give evidence of a traumatic event.”

There will be occasions when, after these and other relevant factors have been considered, the interests of justice require that a witness or party may refer to the trans person using their former pronouns or name.”

The guidance then cites the provisions relating to special measures for vulnerable and intimidated witnesses contained in the Youth Justice and Criminal Evidence Act 1999 and Domestic Abuse Act 2021. Previous versions of chapter 12 of the ETBB have not mentioned provisions relating to these groups of witnesses.

This amendment should mean that complainants giving evidence in trials for rape or other sexual offences will not be required to call male defendants ‘she’, and that women giving evidence in family proceedings about their experiences of domestic abuse will not be required to refer to their former male partners as though they were women.

The use of the language of rights in the amendment is significant. While this is an important step forward, many of the problems raised by the ETBB’s general guidance about the use of preferred pronouns are still not addressed in the new version. In practice witnesses’ ability to exercise their right to use pronouns which align with the sex of trans-identified parties to proceedings will be limited by the fact that the ETBB is likely to be interpreted to mean that the judge, the lawyers representing all parties in the proceedings, and perhaps other witnesses, should use preferred pronouns based on self-defined ’gender identity’. The ETBB does not discuss the implications for a witness of calling a trans-identified male ‘he’ while everyone else who speaks in the court room calls that person ‘she’. Where this happens it is likely to confuse and unnerve the witness, who may feel pressurised to use preferred pronouns themselves. This experience is likely to be particularly confusing and distressing for child witnesses and witnesses with learning disabilities.

In criminal proceedings this problem is likely to be compounded in cases where witnesses have already experienced the local police service and the Crown Prosecution Service referring to trans- identified defendants according to their ‘gender identity’ rather than their sex. Research carried out in 2019 by Fair Play for Women found that sixteen police services in England and Wales recorded the sex of suspects and offenders based on self-defined gender. Eight services confirmed in answer to a specific question relating to the offence of rape that they would record the sex of a rape suspect who identifies as transgender as female. In October 2021 it was reported that the Home Secretary intended to end these practices. Whether this will happen remains to be seen. The Crown Prosecution Service also operates a policy of recording the self-defined ‘gender’ of defendants.

In most respects the ETBB guidance makes no distinctions between people who identify as transgender who have obtained a Gender Recognition Certificate which changes their ‘gender’ in law, and those who have not. It has effectively introduced self-definition of ‘gender identity’ into the conduct of court proceedings, despite the fact that self-definition is not aligned with current law. This has not changed in the new guidance.

Another criticism of the previous ETBB was that it was partisan and adopted many of the tenets of gender identity theory as if they were matters of fact rather than opinion. This is discussed in depth in a Policy Exchange publication written in 2021 by Thomas Chacko, who also discusses the approach to self-identification in some detail.

The revised version of the ETBB continues to use language founded in gender identity theory which is widely contested, such as ‘gender assigned at birth’. Arguably, its overall approach remains imbued with gender identity theory, on which the implementation of self-definition of ‘gender identity’ is based.

The revised edition has clearly been influenced by the Employment Appeal Tribunal (EAT) judgment in Forstater https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf v CGD Europe and Ors(2021) in which it was held that gender critical beliefs are protected beliefs under the Equality Act 2010. It is somewhat more even-handed than previous editions, in that it gives a brief explanation of gender-critical beliefs, notes that they are protected, and acknowledges for the first time that there is a debate in this area. However, the ETBB’s framing of the Forstaterjudgment arguably expresses implicit bias.

While it notes that gender critical beliefs are protected, the revised edition does not explicitly state that this is the result of the decision in Forstater, except in its Appendix on the Equality Act. Its only clear reference to the judgment in Forstaterin chapter 12 relates to what the EAT said about ‘misgendering’.

At paragraph 78, the new ETBB states,

“‘Gender-critical’ is a phrase which, broadly speaking, refers to a belief that sex is immutable and binary, and that people cannot transition. Very often it is linked to concerns that allowing the definition of women to include trans women would make the concept of ‘women’ meaningless and undermine protection for vulnerable women and girls. There is also often concern about what is seen as potential encroachment into ‘safe spaces’. Feelings can run very strongly on both sides of this debate. Clearly the ETBB takes no sides on this matter. The ETBB’s concern is simply that judges have some understanding of the perspectives of the variety of litigants and witnesses who appear before them. Gender-critical beliefs (as long as they do not propose for example to destroy the rights of trans people) are protected beliefs even if they might offend or upset trans people (and others). However, holding a belief is different from behaviour. As explained in the well-publicised Forstater case, ‘misgendering’ a trans person on a particular occasion, gratuitously or otherwise, can amount to unlawful harassment in arenas covered by the Equality Act 2010.”

The ETBB omits to note that the EAT reiterated that the position at common law as established in Corbett v Corbett (orse Ashley)[1971] P 83 is that sex is immutable (para.115), and that the Tribunal also stated that,

“…it is relevant to note, and it was not in dispute before us, that the Claimant’s belief is shared by many others.” (para.52)

Forstater is a landmark case in relation to the protection of gender critical beliefs which has significant implications for the treatment of witnesses who are gender critical or who do not share what the EAT in Forstatercalled “gender identity belief” (para.108). Given the significances of this case, a more neutral summary of the EAT’s judgment, and an exploration of its implications in relation to judicial attempts to require witnesses to use the preferred pronouns and modes of address of trans-identified parties in court proceedings, might have been expected.

The ETBB’s introduction of de factoself-definition of ‘gender identity’ happened without public consultation, and the process by which the ETBB guidance is developed is not open to public scrutiny. Melanie Newman reported in the Law Society Gazette in 2020 that the Judicial College had refused to identify the external organisations involved in training and policy formulation in relation to the ETBB. The Judicial College takes the view that it holds information about judicial training on behalf of the judiciary, and therefore this information is not subject to the Freedom of Information Act. Such lack of transparency creates an environment which is vulnerable to policy capture.

The fact that the Panel has considered our letter to the Lord Chief Justice and taken some of its concerns into account is an encouraging sign of increasing openness to a wider range of opinion. Perhaps there is hope that before the next edition of the guidance the Judicial College will develop a more transparent process for producing it.

Letter to the Lord Chief Justice

The Right Honourable

The Lord Chief Justice of England and Wales Royal Courts of Justice

Strand

London

WC2A 2LL

27th August 2021

Dear Lord Chief Justice,

The Judicial College’s Equal Treatment Bench Book

We are a group of practising lawyers and legal academics. We are writing in a personal capacity to express our concerns about the implications for witnesses in both criminal and civil proceedings of the guidance on ‘Trans People’ in chapter 12 of the Judicial College’s Equal Treatment Bench Book.

Judges are interpreting this guidance as requiring them to compel witnesses to use the preferred pronouns of defendants who identify as transgender. We are particularly concerned about the implications of this guidance for adult and child complainants at criminal trials relating to violent and sexual offence, and for parties in family proceedings who are giving evidence about their experiences of domestic abuse.

The Bench Book states,

‘‘It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns.’’ (page 325)

No guidance is given about how this requirement should be carried out in practice in relation to witnesses other than those who identify as transgender, or about how judges should treat witnesses who perceive defendants in terms of their sex rather than their ‘‘gender identity’’. The guidance is written as if the use of a defendant’s preferred pronouns is simply a neutral administrative matter which will have no detrimental effects on witnesses, or on court proceedings.

This has particularly serious implications for witnesses who are giving evidence about traumatic events, such as being subjected to physical and sexual violence. The Bench Book guidance does not address the impact on these witnesses of being required to describe a defendant in criminal proceedings, or an alleged perpetrator of domestic abuse in family proceedings, in ways which amount to a denial of their own perceptions of reality. This is despite the fact that special measures which recognise the particular difficulties which these witnesses may face in giving evidence at court are provided in section 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 in relation to criminal proceedings, and in sections 63 and 64 of the Domestic Abuse Act 2021 in relation to victims of domestic abuse giving evidence in family and other civil proceedings.

The account below was given by Maria MacLachlan, who was assaulted in 2017. One of her attackers, Tara Wolf, who self-defines as a ‘trans woman’, was convicted of assault by beating in April 2018. MacLachlan has stated:

‘‘My experience of court was much worse than the assault…I was asked ‘‘as a matter of courtesy’’ to refer to my assailant as either ‘‘she’’ or the ‘‘defendant’’. I have never been able to think of any of my assailants as women because, at the time of the assault, they all looked and behaved very much like men and I had no idea any of them identified as women… I tried to refer to him as the ‘‘the defendant’’ but using a noun instead of a pronoun is an unnatural way to speak. It was while I was having to relive the assault and answer questions about it while watching it on video that I skipped back to using ‘‘he’’ and earned a rebuke from the judge. I responded that I thought of the defendant ‘‘who is male, as a male’’. The judge never explained why I was expected to be courteous to the person who had assaulted me or why I wasn’t allowed to narrate what had happened from my own perspective, given that I was under oath.’’ (Julie Moss, ‘Interview: Maria MacLachlan on the GRA and the aftermath of her assault at Speakers’ Corner’, Feminist Current, 21 June 2018, https://www.feministcurrent.com/2018/06/21/interview-maria-maclauchlan-gra-aftermath-assault- speakers-corner/)

The authors of the Bench Bookappear not to have considered the inter-action between its guidance and guidance in Achieving Best Evidence in Criminal Proceedings(ABE). ABE states that judges have a responsibility to ensure that all witnesses are enabled to give their best evidence, and that that they must strike a balance under Article 6 of the European Convention on Human Rights between protecting the defendant’s right to a fair trial and ensuring that witnesses are enabled to give evidence to the best of their ability. It requires judges to “…have regard to the reasonable interests of witnesses, particularly those who are in court to give distressing evidence, as they are entitled to be protected from avoidable distress in doing so.’’ (p.134)

The logic of the Bench Bookguidance is that a complainant in a rape trial can be required to call a defendant who has raped her (or him) ‘‘she’’, and to use female possessive pronouns to refer to the defendant’s body parts. This could also apply to child witnesses and vulnerable adult witnesses. The guidance does not consider how a child or an adult with learning disabilities might experience an instruction from an authority figure like a judge to refer to a biological male as ‘‘she’’. The right to accurately describe the sex of those who have assaulted them is crucially important to the ability of victims of violent and sexual offences to report violence and give evidence at court. Compelling witnesses to describe a defendant in ways which amount to a denial of their own perceptions of reality therefore undermines access to justice.

The use of pronouns and forms of address which reflect a person’s ‘gender identity’ rather than their sex is not simply a matter of social courtesy. For many people it is an expression of a political belief with which they profoundly disagree, and which they consider to be harmful to the rights of women, and to society as a whole. The Bench Bookguidance is effectively promoting the imposition of a form of compelled speech, which is an infringement of witnesses’ rights to freedom of thought, conscience and religion, and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights respectively. Both these articles protect the right not to be obliged to manifest beliefs that one does not hold, as stated in the case of Lee v Ashers Baking Co[2018] UKSC 49. The right not to be compelled to express a political belief is well established in the case law of the European Court of Human Rights.

The courts have an obligation to balance the rights of defendants and witnesses in criminal trials, and to balance the rights of parties to civil proceedings. However, the Bench Book guidance prioritises the wishes and feelings of those who identify as transgender and includes no guidance for judges about balancing rights. The use of this guidance potentially impedes witnesses’ ability to give accurate and coherent evidence, particularly where giving evidence requires them to recall traumatic events. This cannot reasonably be said to be a proportionate means of achieving the Bench Book’sstated aims, and therefore its interference with witnesses’ Convention rights is not justified.

The Bench Bookguidance appears to be founded on what the Employment Appeal Tribunal in Forstater v CGD Europe and others(UKEAT/0105/20/JOJ) described as ‘gender identity belief’ (paragraph 108). This is the belief that ‘’everyone has a gender identity which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women’’ (paragraph 107). The Tribunal found that the Claimant’s lack of ‘gender identity belief’ was protected under Article 9 (1) ECHR and therefore within section 10 Equality Act 2010; as was her ‘gender-critical belief’, the core of which is that sex is biologically immutable (paragraphs 14 and 15). The Tribunal noted that this belief is in accordance with the current law (paragraph 115), and is shared by many people (paragraph 52).

The Bench Bookguidance is not aligned with the Gender Recognition Act’s provisions relating to the recognition of ‘gender identity’. It states that,

“It should be possible to recognise a person’s gender identity…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.’’ (page 326)

This effectively introduces self-definition of ‘gender identity’ into the conduct of court proceedings. However, such self-definition has not been incorporated into law in this jurisdiction. Proposals to amend the Gender Recognition Act to incorporate self-definition have been the subject of a public consultation, following which the government decided not to introduce these proposals into law. In advising judges to incorporate self-definition of ‘gender identity’ into the conduct of court proceedings, the Bench Book effectively advises judges to go beyond the law.

The Bench Book’s approach has been introduced without public consultation, and in the absence of any established public consensus. The Law Society Gazette has reported that, when asked to identify the organisations who assisted in the development of this guidance, the Judicial College stated that it was “not in the public interest to make public the names of those involved in this work.’’ (Melanie Newman, ‘Warning over transgender guidance to judges’, The Law Society Gazette, 24 February 2020, https://www.lawgazette.co.uk/news/warning-over-transgender-guidance-to- judges/5103196.article).

We find this lack of transparency about the influences on such an important document very concerning, particularly as the document is not aligned with current law.

There appears to be increasing concern about the Bench Book’s guidance in this area outside of the legal profession, such that the think tank Policy Exchange has recently published a document written by barrister Thomas Chacko which suggests the guidance is in need of urgent revision. We attach a copy of this publication.

We ask that a review of this guidance be conducted with a view to amending it to ensure that it reflects the law, and that it takes account of the obligation to achieve an appropriate balance between the rights of all witnesses in court proceedings.

Yours sincerely,

Rosemary Auchmuty, Professor of Law

Sue Bruce, Solicitor

Thomas Chacko, Barrister

Naomi Cunningham, Barrister

Peter Daly, Solicitor

Eileen Fingleton, Solicitor

Francis Hoar, Barrister

Belinda Lester, Solicitor

Audrey Ludwig, Solicitor

Helen Nettleship, Barrister

Maureen O’Hara, Senior Lecturer in Law

Peter Ramsay, Professor of Criminal Law

Angela Smith, Solicitor

Robert Wintemute, Professor of Human Rights Law

^[1] A case management conference (civil law) or hearing (criminal law) is essentially a meeting which takes place before the main court proceedings between the allocated judge and lawyers for the parties, where decisions are made about various aspects of the conduct of the case.