Tag: gender reassignment discrimination

Sex matters in drawing comparisons

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

A guest post by Anya Palmer, barrister

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

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

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

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

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

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

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

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

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

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

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

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

*****

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

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

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

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

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

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

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

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

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

The tribunal dealt with this claim as follows:

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

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

….

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

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

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

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

*****

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*****

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

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

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

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

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

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

There are two possibilities here:

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

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

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

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

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

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

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

Trans women are women.

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

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

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

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

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

*****

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

The tribunal concluded that

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

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

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

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

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

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

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

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

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

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

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

Is “misgendering” always harassment?

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

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

A preliminary point about my own use of language

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

The protected characteristics 

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

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

Theme 

Adam has provided the theme: 

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

Variations 

Variation 1

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

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

Comment

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

Variation 2 

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

Comment 

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

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

Variation 3 

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

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

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

Comment

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

Sub-variation 3(a) 

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

Comment 

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

Variation 4 

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

Sub-variation 4(a)

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

Sub-variation 4(b)

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

Sub-variation 4(c)

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

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

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

That’s enough variations

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

Comments are open. 

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

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

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

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

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

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

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

The classic and annoying lawyers’ answer… it depends! 

So how to decide if something is unlawful harassment?

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

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

Context

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

Which protected characteristics are covered?

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

What does the law say ?

The Equality Act says the following:

“26 Harassment

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

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

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

(i)violating B’s dignity, or

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

(2)A also harasses B if—

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

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

(3)A also harasses B if—

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

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

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

So let’s break it down:

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

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

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

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

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

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

(b)the other circumstances of the case;

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

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

“Violating dignity etc”

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

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

Very case specific

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

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

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

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

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

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

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

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

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

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

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

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

2.    What does the complainant say happened?

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

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

5.    What does the respondent  say happened?

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

7.    What do any witnesses say?

8.    Is there any other relevant evidence?

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

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

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

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

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

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

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

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

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

However, this may be a trap for the unwary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AEA v EHRC: An Explanation

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

The Claimant 

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

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

The Defendant

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

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

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

Principal area of concern

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

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

The Question of Lawfulness

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

Justified Women Only Services

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

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

Requirement 1

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

Requirement 2

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

The Substance of the Claim

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

Prescriptive Inclusion: The “Must” Approach

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

The Defendant, EHRC, said that 

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

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

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

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

Extent of Justification Required 

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

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

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

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

Whether Appearance is a factor

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

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

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

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

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

The decision

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

He decided it was not, for the following reasons:

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

THE EHRC’s Stance on Single Sex Services

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

The EHRC made two important concessions:

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

What does all this mean?

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

And where should these cases be brought?

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

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

Some of the Misleading Public Guidance

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

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

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

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

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

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

What happens next?

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

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

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

Friday Round Up

It’s been a while since our last Friday round-up – here’s this week’s feminist legal news, plus a few highlights from the month.

In Scotland, Adnan Ahmed won his appeal against conviction. Ahmed was a “pick up artist” who made a career out of unsolicited approaches to young women, including two who were in school uniform at the time. Indicating a depressing lack of insight into the difference between “street harassment” and “a compliment,” the all-male appeal court held that “It does not seem to us that a polite conversational request or complement [sic] can be construed as threatening merely because it is uninvited or unwelcome.” They also had much to say about the Sheriff’s descent into the arena of cross-examination.

At Yew Trees hospital, which housed autistic women and / or women with learning disabilities, ten staff have been suspended after footage showing abuse was passed to the CQC. Police action appears to be pending.

Mirth among legal twitter from the judgment in Pile v Chief Constable of Merseyside Police, which was introduced in the first paragraph as looking at the “liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing.” This seems to have been a slightly facetious introduction to a case which looked at the balancing of a detainee’s right to consent to the removal of clothing and the police’s obligations to ensure her safety and dignity including the necessity of a male officer to check on her while she was in her underwear. The conclusion was that the practical needs outweighed her concerns about consent, but that is not quite how it was introduced. The judgment, while circulated as an example of judicial humour, carries an unfortunate note of contempt for drunken women. As to merits, someone had plainly granted permission, so it wasn’t entirely unmeritorious. Legal Feminist wonders whether an equally insensible male claimant would have been the subject of quite so much elbow-jogging amusement.

In Leeds, it appears that the council have decided to extend the “managed zone” in which prostitution is legalised. This is on the strength of the review document, which concluded that while the system failed from 2014-2018, the claimed improvements of 2019 justified extension. It will be interesting to learn whether or not Leeds have complied with PSED in making this decision. 

Barrister Alexandra Wilson has received an apology from HMCTS after being mistaken for a defendant three times in one day. BAME barristers being asked if they are defendants or interpreters is sadly not uncommon, and we hope this apology leads to real change. 

In sex and gender news, a busy period recently: 

In the case of Taylor v Jaguar Land Rover, the Claimant, who identified as gender fluid / non-binary and wore women’s clothing to work, had applied to the Employment Tribunal as a result of a course of harassment over a period of time, including insults and abuse. S.7 Equality Act 2010 defines the protected characteristic of “gender reassignment” as follows:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Claimant’s submission was that she was included within the protected characteristic of “gender reassignment” while Jaguar as the Defendant argued that gender-fluid or non-binary identities did not meet the relevant definition. Finding for the Claimant, the Tribunal awarded aggravated damages “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.”  Although this is a first-instance decision, and therefore not binding on any other court or tribunal, it demonstrates that the Employment Tribunal is willing to consider that the definition of gender reassignment should be broadly interpreted. Congratulations on a good win to Robin White of Old Square Chambers who was instructed for the Claimant.

Liz Truss MP announced this week that there would be no change to the substantive requirements to obtain a Gender Recognition Certificate. Applicants will continue to produce evidence of gender dysphoria. However the process will be made less expensive and waiting times will be cut considerably with three new gender clinics opening.

At the same time, the NHS announced that there will be an independent review, led by Dr Hilary Cass OBE, into gender identity services for young people. This follows the cases brought by Keira Bell and by Sonia Appleby relating to concerns at GIDS. We note that the first ‘no win no fee’ adverts by solicitors to represent negligence claims brought by detransitioners are already being seen.

The Department for Education has also published guidance on teaching Relationships and Sexual Health (RSE) clarifying that “You should not reinforce harmful stereotypes, for instance by suggesting that children might be a different gender based on their personality and interests or the clothes they prefer to wear. Resources used in teaching about this topic must always be age-appropriate and evidence based. Materials which suggest that non-conformity to gender stereotypes should be seen as synonymous with having a different gender identity should not be used and you should not work with external agencies or organisations that produce such material.” It is shocking that in 2020 it was necessary to clarify that girls can like engineering and trousers, but welcome guidance nonetheless. 

Discrimination: Only Unlawful if It Is Unlawful

Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)

My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder. 

Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?

Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.

Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.

Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy. 

But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.

“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.

“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.

“This presents a clear safety risk when transgender women play women’s contact rugby.”

This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”

But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic. 

So a useful list of things to note when initially considering if something is unlawful discrimination:

Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.

Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.

Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination. 

These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more. 

Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.

Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment. 

So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team. 

However, there is an exception allowing for single sex teams. S195 Equality Act says :

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.

This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination. 

Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex. 

Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.

So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.

Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.

Sex, gender and fair competition in sport

When is it lawful to exclude trans women from women’s sport?  And will it ever be unlawful – or legally risky – not to? I argue that the answers are “usually,” and “yes,” respectively.

Most competitive sports are segregated by sex: as a rule, there will be a women’s event, and a men’s event. Sportswomen and men have to compete in the event specific to their sex, and will generally be refused admission to the opposite sex’s team or event. 

Not being allowed to take part in something you want to take part in because of your sex is sex discrimination, which the Equality Act 2010 prohibits in various contexts – including many of the contexts in which people do amateur or professional sport. So how come it’s lawful to have separate men’s and women’s events at all? 

The answer is in Part 14 of the Act, the Part headed “General Exceptions.” Section 195 is headed “Sport.” 

The main work of section 195 is done by its first two subsections, supported by a definition at s.195(3).  I’ll take the definition first. 

The definition: “gender-affected activity” 

Section 195(3) defines the expression “gender-affected activity.”  If 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, it’s a gender-affected activity.  

That will easy to apply in the vast majority of cases. The physical strength, stamina or physique of the average woman will put her at a disadvantage compared to the average man in almost all sports where muscular strength, speed, body size, reach etc. are significant. No doubt there are some borderline cases, and the odd exception; and it may even be that in some extreme endurance events women start to pull ahead[1]. But in general, if men and women compete in the same sports, relatively ordinary men will outperform even elite women. That’s why we have segregated sports: if we didn’t, in most events women would scarcely get a look in.  

Deciding whether average persons of one sex have an advantage over average persons of the other doesn’t require us to tangle with controversy about who exactly should be included when we calculate the qualities of “average persons of one sex.” Even if you include trans women in the total population of women from which you draw your average, that may shift the average a bit,[2] but it won’t make the male advantage disappear. So the great majority of sports will be gender-affected activities, and self-evidently so. (See Dr Emma Hilton’s paper here https://www.preprints.org/manuscript/202005.0226/v1 if you’re not with me on “self-evidently.”) Exceptions will be sports where the differences between competitors are all about skill, built on a base level of athleticism that either sex can attain. Equestrian events are the obvious example; and sure enough, they tend not to be segregated by sex.

Subsection (1): sex discrimination 

Subsection (1) takes participation in any gender-affected sport right out of scope for all relevant prohibitions of discrimination on grounds of the  protected characteristic of sex. Nothing anyone does to anyone on grounds of sex in relation to their participation as a competitor will be unlawful sex discrimination, provided only the sport is a gender-affected activity.

Subsection (2): gender reassignment discrimination  

Subsection (2) provides a more qualified defence to gender reassignment discrimination where the sport is a “gender-affected activity” and the discrimination is necessary to fair competition or safety. 

So to decide whether it’s lawful to exclude a person with a male body from a women’s sporting event, you need to work out whether the circumstances fall under subsection (1) or (2). That means you need to know whether excluding them would be discrimination on grounds of sex, or discrimination on grounds of gender reassignment.

Which kind of discrimination is it? 

I’m going to discuss three imaginary individuals, Chris, Viv and Hilary, all of whom would like to compete in a women’s rugby match, and all of whom are turned away by the body organising the match because they have male bodies. Chris is a man, and doesn’t identify as anything else. Viv is a trans woman without a GRC. Hilary is a trans woman with a GRC. 

Chris is excluded from the match because he’s a man: it’s a straightforward case of direct sex discrimination, but rugby is a gender-affected activity, so s.195(1) makes it lawful to exclude him from the women’s match. 

Viv doesn’t have a GRC, so although she self-identifies as female, so far as the EqA is concerned she’s of the male sex. A person of the opposite sex would have been allowed to compete, so this too is direct sex discrimination, and lawful by virtue of s.195(1). No ifs or buts,[3] and no need for justification in the individual case. 

Hilary, although biologically male, is legally female, so a person of the opposite sex – a man – would have been excluded from the match just the same. So Hilary hasn’t suffered sex discrimination. But she has suffered gender reassignment discrimination, because a comparator of the same (legal) sex but not having the protected characteristic of gender reassignment – that is, a woman who was a woman by biology rather than by a process of legal deeming – wouldn’t have been excluded. So Hilary’s exclusion is lawful under s.195 only if it is necessary in order to secure fair competition or the safety of other competitors.[4]

Bearing in mind that rugby is a contact sport which even among physically well-matched opponents frequently causes injury, it seems likely that including Hilary – unless she has an unusual physique for someone who has been through male puberty – will increase the risks to her biologically female opponents. The same goes for fairness: Hilary’s male puberty will have given her an advantage that no certificate or legal status can erase. This is likely to be true in almost any case where a trans woman with a GRC wishes to compete with women in a gender-affected activity: even where safety isn’t engaged, the fact that the sport is a gender-affected activity will normally be sufficient to indicate that fairness will be undermined if a biological male is allowed to compete. 

So although conditions for the operation of the exemption look different under subsections (1) and (2), the reality is that it will normally be lawful to exclude trans women from women’s events (anyway so long as those events amount to the provision of services within section 29) whether or not they have a GRC. 

Will it ever be unlawful not to exclude trans women from women’s sport? 

Section 195 provides exceptions to general rules in various contexts prohibiting discrimination on grounds of sex and gender reassignment. On their face, they are merely permissive: they say you may discriminate, but they don’t say that you must. So some sporting bodies may take the view that they’d rather not be sued for discrimination, even if they might have a good defence under s.195, so they might as well err on the side of safety by welcoming all comers on the basis of self-identification. 

But it’s not as simple as that. I can foresee two distinct ways in which sporting clubs or bodies may lay themselves open to claims if they permit male-bodied people to compete in women’s events, and there may be others I haven’t thought of.[5] The most obvious one is negligence: in contact sports (and potentially others, like cycling, where there is a risk of accidental contact), permitting trans women to compete may make the contest not merely unfair, but also more dangerous than it ought to be. 

But in many cases even where safety isn’t engaged, there is the possibility of indirect discrimination to contend with. Indirect sex discrimination occurs where a “provision, criterion or practice” puts women at a particular disadvantage compared to men. Opening participation in sex-segregated sports to trans men and trans women (whether on the basis of self-identification, or limited to those with a GRC) will put women at a striking disadvantage compared to men: men in general have nothing to fear from trans men competing in their sports, but if trans women are allowed to compete in women’s sports, natal women are bound to lose out on team places, prize money, sponsorship, medals, and  – perhaps most importantly – participation.

An indirect discrimination claim on this basis isn’t straightforward, because of the extraordinarily broad terms in which section 195(1) is expressed: read literally, it abolishes the whole of sex discrimination law at a stroke in relation to participation in gender-affected activities. That is a result so peculiar that one feels there must be a way around it[6] – but that’s a puzzle for another day. 

[1] In truth, this caveat is only there as an excuse  for a footnote about Jasmin Paris’s outright triumph, beating all previous male and female records, in the 2019 268-mile Montane Spine Race along the Pennine Way while breast-feeding.

[2] In fact, it undoubtedly will.

[3] I am confident that this analysis is correct, but it is fair to note that the contrary view does appear to be implicit in Alex Sharpe’s article ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (Sharpe (2020) 83 (3) MLR 539-557).

[4] There’s a weirdness in the drafting of s.195. Subsection (1) obliterates the whole of sex discrimination law so far as it relates to participation in gender-affected activities. Subsection (2), in contrast, just excludes four specific sections: s.29, which prohibits discrimination in relation to the provision of services; plus sections 33-35, which relate to the disposal and management of premises. The disparity of coverage isn’t mentioned in either the EHRC Code of Practice or the explanatory note to the Act, and I’m currently baffled by it: I find it difficult to to understand why, for example, the exemption shouldn’t extend to discrimination by associations or educational institutions. If anyone can explain that to me in a comment, I shall be grateful.

[5] Again – please comment if you can think of others.

[6] At the very least, in relation to professional sport, it can’t be compatible with the Equal Treatment Directive 2006/54/EC.