Sensible people and the law going bonkers

How sensible is the law when it locks up vulnerable female prisoners with violent men who say they are women?

Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.

That would be more reassuring if the law had not already been very bonkers indeed for some years.

The case of double rapist Adam Graham, otherwise known as Isla Bryson, has been hitting the headlines since his conviction on 24 January this year. Graham was initially remanded for sentencing to Cornton Vale women’s prison, before he was moved to a men’s prison in response to a public outcry. How did that come about, and was it a brief anomalous moment of bonkersness before sensible people reverted to being sensible?

Separate prisons for men and women

Separate establishments or parts of establishments for male and female prisoners have been maintained in the UK since 1823, when the Gaols Act 1823 provided “In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.” The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):

Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.

The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which supplement the Standard Minimum Rules, lay particular stress on physical and psychological safety at paragraph 9:

In its resolution 61/143 of 19 December 2006 entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender-based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women… The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account.

The current position in domestic law for England and Wales is less definite. It is to be found at rule 12 of the Prison Rules 1999, made under the Prisons Act 1952:

(1) Women prisoners shall normally be kept separate from male prisoners

Interestingly, the Prisons and Young Offenders Institutions Scotland Rules 2011 say:

126.—(1) Female prisoners must not share the same accommodation as male prisoners.

(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.

Despite these provisions, the principle of single-sex prisons has been quietly eroded since men who had had genital “reassignment” surgery started to be imprisoned with women by the 1980s (Biggs, 2020). In 2009, the prison authorities were still holding the line that surgery was a pre-requisite for transfer to a women’s prison.

That was already a significant departure from “people being sensible”. A man does not become a woman by having his testicles removed, nor by having his penis inverted into a surgically-created cavity as a “neo-vagina”; nor by having implants or taking hormones to create the appearance of female breasts. A violent man who has undergone some of those treatments may present less of a threat to women of certain particular kinds of crimes than an unmodified man, but he will retain his advantages of size and strength. Rape is only one of the ways that men terrorise women.

In any event, women’s wish for bodily privacy from men is not solely or even chiefly about demonstrable threat. It is about deep-seated taboo, and in some cases about trauma-induced fear. It is humiliating for a woman to be required to undress in the presence of a man, and for some women it will also be terrifying even if the particular man poses no risk. A woman traumatised by male violence may reasonably be hypervigilant in the presence of any man.

Genital surgery cannot reasonably be expected to make a difference to this. Why would it? Many women will object strongly to being expected to undress in the presence of men with whom they are not intimate. Few of those can be expected to feel any more comfortable undressing in the presence of a man who has had genital surgery. We do not wish to see male genitals in the women’s changing room; but we may well have a wish at least equally strong not to see the site of surgical removal or remodelling of male genitalia. Medical treatment is a private matter between patient and physician. It is not our business whether a man has had genital surgery or not, and we do not want it made our business.

These are considerations to which the sensible people who decided to start moving men into women’s prisons appear to have been oblivious.

But the law – or at any rate the administration of the law by sensible people – got more bonkers than that, much.

Mark (aka Karen) Jones

In 2009, Mark Jones, a male prisoner who had been granted a GRC but had not yet had genital surgery, brought judicial review proceedings challenging the prison service’s refusal to move him to a women’s prison. NHS policy at the time was to make “living as a woman” for two years a pre-requisite to surgery, and did not recognise “living as a woman” in a men’s prison as sufficient.

Jones’s convictions were for the manslaughter of his boyfriend, and for a terrifying attempted rape of a female stranger. He was evidently difficult to manage in prison. A report from his own expert supported the proposal to transfer him to the female estate on the basis of an expectation of a deterioration in his behaviour if his wishes were thwarted:

[The claimant] needs to control the threatening external world by imposing [his] own order and when this is not possible [he] resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements . . .

. . . As [the claimant’s] desperation to control [his] environment mounts, [he] experiences a heightening degree of narcissism or self-concern. [H]e is increasingly liable to experience aggressive and destructive impulses.

[emphasis supplied]

Argument in the case ( B v Secretary of State for Justice [2009] EWHC 2220 (Admin)) focused on Jones’s article 8 rights, and the cost to the prison service of the (possibly extended) period of segregation in a women’s prison which was thought likely to be necessary before he could be allowed to “mix with and form friendships with other women [sic] as she [sic] would choose to do”.

The closest the court’s reasoning, or any material referred to in the judgment, came to considering the human rights of the women who were to be locked up with a violent, narcissistic and sadistic rapist is to be found in three short passages from the evidence. Mr Spurr, the Chief Operating Officer of the National Offender Management Service referred at paragraph 56 of his statement to a number of factors he said were relevant to the decision, including “concerns over how the female population would react to her [sic] generally, and also specifically if they became aware of her [sic] index offence”.

At paragraph 64, Mr Spurr said:

I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant’s risk to herself [sic], NOMS must also bear in mind the risk she [sic] poses to other prisoners.

Dr Barrett dealt dismissively with any unhappiness that female prisoners might feel about the company they were to be required to keep:

I would say that I suspect that caution will probably lead to her [sic] being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she [sic] is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her [sic] able to cope with the less prolonged, more avoidable, travails of the civilian world.

The interests of the female prisoners who were to be locked up with Jones were not represented, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

The court was persuaded. The judge held that holding Jones in a men’s prison interfered with his personal autonomy as protected by article 8 of the European Convention on Human Rights in a manner going beyond what imprisonment was intended to do, and that the prison service had failed to provide sufficient justification for the interference. He was accordingly transferred to a women’s prison to serve the remainder of his sentence.

There were only two parties present or represented in court: Jones himself, and the Secretary of State for Justice. The interests of the female prisoners who were to be locked up with Jones were not represented by any interested party or intervener, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.

Adam Graham (aka Isla Bryson) and Scottish Prison Service Policy

Anyone still cherishing the idea that “the law is sensible people” might regard the judgment of the court in B as a high-water mark of bonkersness, and look forward to it being swiftly corrected at the next opportunity. They would be disappointed by what happened next.

The Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was adopted in 2014. It says under the heading “Policy key principles”:

The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.

That is a policy under which Mark Jones would have been automatically assigned to women’s prison simply on the strength of his self-identification as female. He would not have been put to the trouble of seeking surgery.

Adam Graham/Isla Bryson’s initial placement in a women’s prison was wholly consistent with that policy, and should have surprised no-one.

FDJ v Secretary of State for Justice (2021)

The first (and so far only) attempt to persuade the High Court to give some weight to female prisoners’ human rights in deciding where to place male prisoners who identify as women was made in FDJ v Secretary of State for Justice [2021] EWHC 1746 (Admin).

FDJ served a sentence of imprisonment between October 2016 and June 2020, at HMP Bronzefield, a women’s prison operated by Sodexo. She sought judicial review of MOJ policies which allowed male prisoners who had been convicted of sexual or violent offences to be allocated to women’s prisons if they asserted a female gender identity and/or had been granted a GRC. FDJ gave evidence that she had been sexually assaulted by “J”, a male prisoner who had convictions for serious sexual offences against women. He also had a GRC declaring him to be a woman.

FDJ challenged two prison policies, referred to in the judgment as the “Care and Management Policy” and the “E Wing Policy”. The former included this:

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women.

Section 9 reads:

(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Those words seem to have been interpreted by the prison service as imposing a duty on it to treat a man holding a GRC as if he were a woman (and vice versa).

This betrays a fundamental misunderstanding of section 9, which has a much more limited effect. It confers a status: it deems to be true, once certain conditions are met, something that is not true. It does not purport, in itself, to attribute consequences to the legal fiction it creates except in relation to privacy of information. If it did, the consequences would need to be defined, and supported by a carefully thought-out account of what it is to be “treated as a woman” and in what contexts the law could properly require such treatment; and it would need an enforcement mechanism. In general, after all, where the law makes provision about the different treatment of men and women, it does so not by requiring it, but by prohibiting it.

In truth, apart from the privacy provisions, the GRA is better understood as an ancillary enactment about the interpretation of other enactments than as the kind of legislation which in itself requires people to do things, or not to do things.

As Choudhury J confirmed in Forstater v CGD [2021] IRLR 706 at para. 97, “for all purposes” at section 9 means “for all legal purposes”. The GRA does not itself, for example, compel anyone to think of a man who holds a GRC as a woman, or to treat him as such for social or dating purposes, or to ignore his true sex when providing him with sex-specific medical treatment or screening, or to give him access to women-only spaces, etc. If and to the extent that section 9 of the GRA confers on a man a positive right to be treated as a woman (or vice versa) it must do so through the medium of some other enactment or common law rule which attaches concrete consequences to a person’s legal status as a man or a woman. The obvious example (according the ruling of the Outer House of the Court of Session in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90) is the Equality Act 2010.

The E Wing Policy considered in FDJ also proceeded on the assumption that any male prisoner who had a GRC must be housed in a female prison unless the wholly exceptional circumstances in which a female prisoner would be held in the male estate applied in his case.

FDJ in her challenge argued that these policies were unlawful because they indirectly discriminated against women contrary to art. 14 of the Convention read with arts. 3 and/or 8, and contrary to section 29 of the Equality Act; and that the prison service, in formulating its policy, had failed to take account of exceptions in the Equality Act permitting discrimination on grounds of both sex and gender reassignment. But she did not take the point that the policy misunderstood the effect of section 9 of the GRA by treating it as in itself conferring positive rights about treatment by other people; on the contrary, her counsel is recorded at para. 68 of the judgment as conceding that it does. (That concession finds some faint support in an obiter remark in Green v Secretary of State for Justice [2021] EWHC 1746 (Admin), para. 68, but the remark is better understood merely as an acknowledgment – foreshadowing the For Women Scotland case – that a GRC deems a person to have changed sex for the purposes of any comparison in a sex discrimination case under the Equality Act.)

The court proceeded on the basis that paragraphs 26 and 28 of schedule 3 to the Equality Act permitted — but did not require — men and women to be housed in separate prisons. (There is a curiosity here, which is that it is not self-evident that schedule 3, read literally, is applicable at all to the performance of public functions like those of the prison service. But the assumption that schedule 3 was applicable to the allocation and management of prisoners has been made not only by a powerful Divisional Court in FDJ but also by the Court of Appeal in Coll v Secretary of State for Justice [2017] 1 WLR 2093, a case about the more restricted provision of approved premises for the accommodation of female prisoners released on licence than for male prisoners. That being so the point can probably be regarded as settled for all practical purposes.)

FDJ’s argument was that allocating prisoners to the estate corresponding to their gender identity instead of making full use of the schedule 3 permission to hold male and female prisoners in separate establishments had a disproportionately adverse effect on female as compared to male prisoners. That was because male prisoners in female prisons increased the risk of sexual assault to which female prisoners were exposed, whereas female prisoners in male prisons did not (or would not) increase the risk of sexual assault to which male prisoners would be exposed. The Secretary of State was therefore called upon to justify his policy. He could not do so because there were less intrusive measures which he could have taken to care for and manage male prisoners who identified as women.

The Secretary of State argued that the single-sex exceptions in the Equality Act should be used in a manner that is compatible with the art. 8 rights of transgender prisoners, and relied on B v Secretary of State for Justice.

Importantly, FDJ did not challenge the correctness of the decision in B (Mark/Karen Jones’s case), nor did she argue that there should be no men in women’s prisons. She argued instead that the Secretary of state should have struck a different balance between the rights of men who say they are women to be treated as women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.

The court accepted as valid and understandable the fears of female prisoners held with male sex offenders, but declined to interfere with the balance that the prison service policies had struck. Paragraph 83 reads as follows:

The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women’s prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis.

This, to my mind, is the heart of the matter. By limiting herself to arguing that convicted male sex offenders should be excluded from women’s prisons, FDJ had put herself in an impossible position. If it is accepted that the rights of some men to “live as women” entitle them to be held in women’s prisons, decisions about which men should be admitted, and which should not, become exactly the kind of delicate and sensitive judgements in which the courts will be understandably slow to interfere.

No men in women’s prisons?

So was the court right that it was “not possible to argue that the Defendant should have excluded from women’s prisons all transgender women”?

The schedule 3 exceptions deal with situations in which, for privacy, decency etc, it is necessary to provide services separately for women and men. Even assuming that the FWS2 decision is correct and sex in the Equality Act means sex except where modified by the application of a GRC, those exceptions provide expressly for the exclusion of all men – including men with GRCs – from women’s services or spaces, where circumstances justify it. The Explanatory Note to the Act gives counselling services for victims of rape as an example; prisons too are an obvious case where a blanket rule is likely to be justified.

Despite the existence (and accepted applicability) of those express exceptions, the court in FDJ seems to have assumed – without hearing argument on the point, but perhaps obedient to the earlier judgment in B – that their use could not be defended in relation to prisons.

No doubt some men with GRCs would like to be treated for all purposes as if they were women, even in those cases where there is a plain necessity to exclude them from something provided specifically for women. Possibly exclusion will cause them upset, increased dysphoria, rage or even anguish. But as the court in FDJ acknowledges at paragraph 76, it is also understandable that women imprisoned with men may suffer acute fear and anxiety. The qualified art. 8 rights of male prisoners who say they are women may be engaged; but so too are the qualified art. 8 rights and the unqualified art. 3 rights of female prisoners.

Even if the art. 3 rights of female prisoners can be disregarded so that the balance needed is simply between the art. 8 rights of female prisoners and those of male prisoners who say they are women, the numbers involved should be noted. Placing one man in a women’s prison in order to give effect to his art. 8 rights will infringe the art. 8 rights of all the women with whom he is imprisoned.

The schedule 3 exceptions

With those points in mind, we can consider paragraphs 26 and 28 of schedule 3 to the Equality Act, and ask whether it really is impossible for the prison service to make use of them:

Paragraph 26

(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—

(a) a joint service for persons of both sexes would be less effective, and

(b) the limited provision is a proportionate means of achieving a legitimate aim.

Paragraph 28

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

It is clear that in relation to prisons, a “joint service” would be less effective; and that the limited provision – that is, the provision of separate prison accommodation for men and women – is not merely a proportionate means, but the only possible means of achieving the legitimate aim of providing a humane and safe environment for female prisoners, respecting their privacy and dignity, and complying with international standards. That is the reason for the existence of separate men’s and women’s prisons, and it is – necessarily – ample justification for the exclusion from women’s prisons of all male prisoners without GRCs, including those who self-identify as women.

So far as male prisoners with GRCs are concerned, paragraph 28 applies. Under paragraph 28 the question assumes the prior existence of separate services for persons of each sex and simply asks whether the exclusion of men with GRCs from the women’s service is a proportionate means of achieving a legitimate aim. But once again, and for exactly the same reasons, the exclusion of men with GRCs is in pursuit of the legitimate aim of providing a safe, humane and dignified environment for female prisoners, and is not merely a proportionate means but the only means of achieving that aim.

Once the arguments are set out plainly, away from the noise of the thought-quelling chant “trans women are women” and in defiance of the related insistence that we speak and write of men who say they are women as “trans women” and refer to them with female pronouns, the result is clear.

Conclusion

The law in this area has already gone very bonkers indeed. Adam Graham’s initial placement in a women’s prison was not an anomaly, swiftly corrected when it came to light; it was a routine decision in conformity with a policy that had been in place for 9 years. A more forthright challenge to the presence of men in women’s prisons using clear language and centring the human rights of female prisoners cannot come too soon. Let’s hope that this time, the courts will be sensible.

Chesterton’s Fence

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

“Lessons will be learnt”. How often do we hear this? If only. Lessons are not learnt: not by those who should learn them; not enough to prevent similar problems happening again.

Why?

1. The memory hole

If a few years ago, who remembers the investigation or report? Or that it might contain something relevant now? Gavin Williamson resigned over bullying allegations against MPs and civil servants. But no commentator mentioned the 2018 Dame Laura Cox report ^[1] into bullying within Parliament. It was promptly buried with no action taken. So here we are. Again.

2. This time it’s different

The 4 most dangerous words in the English language. Not true and too often an excuse for ignoring lessons painfully learnt.

3. Defining the question to get the answer you want

See Credit Suisse in trouble over Archegos ^[2], a fund run by a man who, when running a different fund, was convicted for insider dealing. How did they get themselves comfortable? Well, by saying this was a different legal entity thus ignoring the character, history of the man in charge and the risks this posed.

4. La-la-la: I’m not listening. Or asking. Denying evidence, not making inquiries so as to

avoid getting inconvenient answers, refusing to listen to those raising concerns, retaliating

against whistleblowers are all too common. Believing what fits with your preconceived

opinions commoner still. As is dismissing concerns as a “moral panic”.

5. Groupthink: With the latest fashionable cause, it becomes easy to ignore those asking

difficult questions or challenging the proposals. Easier to go with the flow than be a member

of the awkward squad, especially if retaliation is feared or threatened^[3].

Remarkably, the Scottish government has taken all of these routes in its response to those asking questions about the GRR Bill. Consider this by Shona Robison earlier this year –

“There is no evidence that predatory and abusive men have ever had to

pretend to be anything else to carry out abusive and predatory behaviour.”

She went on –

“The evidence is critical in relation to this issue.”

Indeed. It is. She clarified –

“If we look at the evidence, the threat to women and girls comes from

predatory and abusive men, not the trans community.”

Note the assumption that not only is there no crossover between predatory, abusive men and those claiming to be trans but there can never be such a crossover.

Still, no evidence? Really? Let’s be kind and accept she was only referring to those countries which had brought in self-ID as planned for Scotland. The Scottish government is always keen to emphasise how in line with international best practice it is. So it must surely have looked at what the evidence actually showed. Yes? Alas, no – as seen in this summary of the international position by MurrayBlackburnMackenzie^[4].

It’s worth noting:

(1) the Scottish government has admitted that it has not found or done any research on the

impact of self-ID laws on women in these other countries^[5]. Always easiest to claim there is

no evidence if you don’t bother looking for it, of course.

(2) In fact, there is evidence of significant problems affecting women, for instance, men ID’ing as women to obtain access to women in places such as prison. In Canada, the US, even Argentina where self-ID was first enacted in 2012.

Let’s look more widely. Is there any evidence in, say, the UK of abusive men pretending to be something else in order to abuse? Or using the cover of something fashionable or respected to carry out abuse?

– A celebrity famous for his charitable activities, say? Why, yes: see Jimmy Savile.

– Or an inspirational Olympic-winning swimming coach? Yes again – see George Gibney ^[6], one of many male sports coaches abusing those entrusted to their care.

– What about the 19 IICSA Investigation Reports ^[7] into the multiple ways in which men abused their positions as priests, teachers, social workers, foster carers, sports coaches and so on to harm the vulnerable? An unbearable amount of evidence there.

– Too long ago, maybe? Well, in the last week the HMICFRS Report ^[8] into the police has detailed how predatory men have become policemen, using that position to abuse women, girls and children.

– What about Scotland? How about convicted sex offenders abusing loopholes allowing them to change their identity^[9], the essence of the proposed GRR Bill? Yes, this has happened.

– Or England? How about someone seeking to dupe a women’s refuge into letting a paedophile who claimed to be transto stay there for 71 days^[10]. Again, yes.

But these abusers are not from the trans community, might be the reply. Alas, there is evidence of men claiming to be trans and using that claim to gain access to victims^[11]. Or to abuse victims then claim to be trans to avoid or mitigate punishment or gain access to women’s prisons where more victims may be found^[12].

What is not yet known – or not with great clarity – is whether those men who are either diagnosed with gender dysphoria or claim to be trans without such a diagnosis have the same rate and type of offending as other men or a higher or lower rate. Getting and understanding such evidence is surely essential before anyone can say that the “trans” community (however defined) poses no risk. Of that, however, there is no sign.

The scale of abuse by male predators is hard to assess. Not all is reported. But that there is overwhelming evidence, accumulated over decades – about how predators operate, how they gravitate to places where victims are found, how they put themselves in positions where it is hard for them to be challenged, how loopholes are abused, opportunities exploited – is undeniable. There is no sector, class, place or profession where it does not happen. There is no group of people immune from being predators. There is no basis for saying that men who are or claim to be trans cannot be – and are not – abusers.

Two facts are clear: overwhelmingly, sexual predators are men; overwhelmingly, their victims are females. The burden is surely on those proposing a reform allowing any man over 16 to change gender purely on his say-so to show why – and how – it will not be abused or exploited by those claiming to be trans.

Two arguments are often used by the reform’s defenders.

(1) Equating trans people with predators is unfair and offensive.

It is no better than those who, opposed to gay rights, claimed that gay men were paedophiles.

Current concerns are another unjustifiable moral panic.

A strawman. It is not that trans people are abusers by definition. Of course, they aren’t. Rather, there will be abusers claiming to be trans in order to commit crimes or otherwise gain some advantage. It is they who are being unfair to trans people by using them as cover to exploit the opportunities the reformers will enable^[13].

Second, see what IICSA’s final report says: allegations of a moral panic about child abuse allowed a culture of denial of what was happening, giving cover to abusers^[14]. There were instances of paedophiles who used councils’ desire to increase “diversity” to get jobs where they could abuse children, jobs they would not have got had there been proper due diligence and a focus on what mattered – safeguarding^[15].

The same point was made in last week’s report on the police. The recommendations of previous reports were ignored, the police were largely in denial about the problems, when women officers reported concerns they were not taken seriously, other considerations prevailed and risk assessment was poor. As the Chief Inspector wrote: “The police must be much more sceptical of those who want to wear the uniform.” ^[16]

(2) “Ah, but men don’t need to use self-Id to carry out abuse” , say the reform’s defenders.

After all, these crimes were committed before self-ID is even legally blessed. Well, not quite

true. But how does that help? If men have already been claiming to be women in order to

commit crimes, avoid punishment or get a lighter regime, why wouldn’t that increase once

self-ID is enshrined in law, with the legal consequences the Scottish government is right now

claiming before the courts?^[17] It is not just the police who need to be “much more sceptical”.

This rebuttal misses the point. Of course, predators don’t need self-ID to commit abuse. Sexual predators don’t needto become teachers, priests, sports coaches, entertainers, charity workers or anything else, either. But they do.

The key questions – those the Scottish government has carefully avoided asking – are:

– Are there risks that this reform – and how it is enacted – could be abused?

– How great are those risks?

– What are the consequences and for whom, if the risks are realised?

– Does it prevent or limit challenge, an essential safeguarding requirement?

– Can the risks be mitigated or eliminated? If so, how?

– If they can’t, should the reform go ahead at all or in its current form?

Three important lessons from previous reports are these:

(1) Boundaries matter – whether physical, safeguarding procedures, vetting, due diligence,

processes, legal requirements, conditions to be complied with, verifications or, in Matt Parr’s

words, “scepticism” about why someone wants to join a particular group.

(2) Ignoring previous reports, recommendations and evidence will make problems much

worse.

(3) Scandals happen when those boundaries are abolished, ignored, weakened or seen as

secondary to some more important purpose: “diversity”, for instance, or the reputation of an

institution or group, when challenge is made unacceptable.

In Chesterton’s words – in their haste to remove the fence, people forget why the fence is needed.

The final IICSA report says that years ago child abuse was not perhaps as well understood as now. It is not much of an excuse for behaviour which even then was wrong. But it may explain why it was not taken seriously as it should have been. The same can also be said of violence against women.

There is no such excuse now. It is unconscionable for the Scottish government to ignore evidence, to refuse to listen to women who have suffered abuse^[18], to refuse to acknowledge the possibility of risks let alone assess them, to take no steps to mitigate them, not to do the necessary research, to assert what they would like to be true rather than engage and explain.

If it continues to ignore the lessons of previous scandals and repeat the same mistakes, then the dismal cycle of harm to the vulnerable, scandal, outrage, investigation, report, apology and promises to learn those lessons will inevitably be repeated. This is bad law and even worse governance. Above all, it is an abdication of responsibility those in public office have to citizens, especially the most vulnerable.

^[1] The report can be found here – https://www.parliament.uk/globalassets/documents/Conduct-in-Parliament/dame-laura-cox-independent-inquiry-report.pdf

^[2] See https://barry-walsh.co.uk/same-old-same-old/

^[3] See the First Minister’s response to the resignation of Ash Regan. And the decision by 8 SNP MSPs not to vote for or abstain on the GRR Bill.

^[4] https://murrayblackburnmackenzie.org/2021/09/08/gender-recognition-reform-and-international-developments/

^[5] See https://archive2021.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-26950&ResultsPerPage=10

^[6] https://www.bbc.co.uk/sounds/brand/p08njhrm – this podcast details Gibney’s crimes over decades and their impact on his victims.

^[7] The reports can be found here – https://www.iicsa.org.uk

^[8] See https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/

^[9] See https://www.scottishdailyexpress.co.uk/news/politics/snp-ministers-urged-close-sex-28360507

^[10] See https://www.thesun.ie/news/9679107/transgender-paedophile-duped-staff-domestic-violence-refuge/

^[11] See https://transcrimeuk.com

^[12] See https://www.scottishdailyexpress.co.uk/news/scottish-news/male-prisoners-changing-gender-under-28149343

^[13] Chapter 4 of the 2018 Morgan report on Islington Council is illuminating on how abusers seek to piggy-back on more respectable organisations, to the reputational detriment of the latter. See https://www.islington.gov.uk/-/media/sharepoint-lists/public-records/communications/information/adviceandinformation/20182019/20181107sarahmorganqcreviewreport.pdf.

^[14] See the Background and Context section of IICSA’s Final Report’s Executive Summary: “The notion that child sexual abuse was ‘not harmful’ persisted into the 1990s and, in some professional spheres, responses to it were seen as ‘over zealous’ and characterised as a ‘moral panic’.”

^[15] See the 1994 White Report (https://islingtonsurvivorsnetwork2.files.wordpress.com/2021/03/the-white-report-redacted.pdf) and the 2018 report by Sarah Morgan QC on Islington Council (footnote 12)

^[16] See the Times article by the Chief Inspector of the Police, Matt Parr – https://www.thetimes.co.uk/article/matt-parr-trust-is-badly-damaged-but-not-beyond-repair-z09gd56r3

^[17] See the current judicial review by ForWomenScotland against the Scottish Government – https://forwomen.scot/18/07/2022/judicial-review-2/

^[18] See https://www.lbc.co.uk/news/women-survivors-of-male-violence-brand-msps-refusal-to-hear-them-a-kick-in-the-t/

SUBMISSION AND COMPLIANCE: risks for Stonewall Champions

Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.

Stonewall is an LGBT charity and lobbying group that started small, edgy and rebellious in 1989. It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.

Stonewall’s employer programmes

Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme.

More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé; Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.

It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single one of the top 100 employers on the Workplace Equality Index is also a Diversity Champion.

Qualifying for the Workplace Equality Index

So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers? Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”

The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections:

1. Policies and benefits

2. The employee lifecycle

3. LGBT Employee Network Group

4. Allies and role models

5. Senior leadership

6. Monitoring

7. Procurement

8. Community engagement

9. Clients, customers and service users

10. Additional work

Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for. The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.

Sampling the submission

Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks:

Does the organisation have a policy (or policies) which include the following? Tick all that apply.
A. Explicit ban on discrimination based on sexual orientation
B. Explicit ban on discrimination based on gender identity and gender expression
C. Explicit ban on bullying & harassment based on sexual orientation
D. Explicit ban on bullying & harassment based gender identity and gender expression
E. None of the above

The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies.

There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean. If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it.

The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.”

Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.

Question 4.5 asks:

Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?

The University describes the training:

A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.
Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.
…
We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.

This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around.

There are pages and pages of this stuff. The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.

Feedback

One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply. This sample from section 1 (“Policies and benefits”) is representative:

[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.

Submission without reservation

You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this:

You pay for lots of Stonewall training.

You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training.

You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way.

Stonewall set you a lengthy open-book examination on how well you’ve done that.

You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc.

Stonewall mark your submission and give you feedback on areas on which you could improve your compliance with their every demand, very likely involving more Stonewall training.

You do the same again next year.

It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?

Why are serious organisations full of serious grown-up professionals willing to submit to these time-consuming indignities?

What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?

The banner on the “submission portal” says it all, really:

Legal and reputational risks

You might think employers would discern a significant reputational risk – not only from being associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride.

But there are concrete legal risks too.

Judicial review of policies

If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies. (Though your staff may care; I’ll come to that shortly.)

But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review. You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.

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

A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance.

In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.

Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”

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

Judicial review of participation in Stonewall’s schemes

Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both.

A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review.

That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:

Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk.
As a public body, we should know what’s going on with the CPS.
Has Stonewall trained CPS?

In fact, thanks to M Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’ If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.” Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.

As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:

Has the organisation done any further work in the past year to improve the working environment for LGBT staff?

The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all functions, private or public.

In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion:

The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation.

The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.” Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well.

In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.

Discrimination claims

Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.

Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.

If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.

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

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

Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.

But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.

If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system. They are not entitled to do that: disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)

Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man.

There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.” It is the only equality policy the University has which is specific to a single protected characteristic.

Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff.

Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status.

In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women. And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.

Workplace health and safety obligations

Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.

Duties to service clients, service users etc.

The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful:

A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.

A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.

A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.

A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.

An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.

A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.

Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.

Conclusion

Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly.

If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.

But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm.

Don’t submit to Stonewall.

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.