Transgender Law In Practice?

Legal Feminist peruses the Inner Temple Yearbook 2020 and raises concerns about whether the teaching for a BPTC student residential weekend on the conflict between women’s and transgender people’s rights was sufficiently rigorous.  

If Allan Briddock’s published account, is an accurate summary, then students attending this course in early 2020 received  an account of the law and of the arguments which Legal Feminist considers inadequate and misconceived. Selected statements are quoted below in italics and we address each of these in turn.  

Perjury

It is not proposed that self-ID would mean a person is able to simply say ‘I am a woman/man’, and then be automatically legally recognised in all contexts as that gender. It is instead envisaged that the person would have to make a form of statutory declaration in order to be legally recognised as a woman or man, and making a false declaration would be a criminal offence.” 

Under section 5 of the Perjury Act 1911, making a false statement in a statutory declaration is punishable by a fine or up to two years imprisonment. Briddock appears to have failed to address  (in the context of self-identification) how a  prosecution may be brought.  Proponents of self-identification remind us that gender is a matter for each individual to interpret in a way that feels meaningful to them and should not be interpreted by reference to outdated stereotypes or biological sex. With no objective way of telling who is a man or a woman, how could a statement that a person intends to live as a man or woman ever be proven false?   We note  that there have been no prosecutions for false statements made under the current Gender Recognition Act 2004, despite, for example,  several transmen carrying out what many people would see as the inherently female act of becoming pregnant and giving birth.  

Inverting Victim/ Perpetrator roles

Transgender women have been portrayed by detractors of self-ID as predators from whom cisgender women need to be protected – a chilling echo of the way that gay men were portrayed as a danger to children and young people in not so distant times. The argument inverts the victim/ perpetrator distinction against a tiny vulnerable minority.”

The vast majority of perpetrators of harm against transgender people are men, not women.  Transgender people do need protection from harm perpetrated by men, and from harms they experience from living in a patriarchal society, but the answer to this does not lie in casting women as the aggressors.  The analysis that the victim/perpetrator distinction has been inverted would seem to suggest that women are posited as the perpetrators of harm against transwomen,  a suggestion which we consider an unsustainable position.

Risk of Harm

When the argument against self-ID is put in this way – ‘this change in law will allow men to access women-only spaces – then any right-minded person would be concerned. There is no doubt whatsoever that women-only spaces should be protected. However, transgender women are not a threat to them.”

This invokes the ‘no true Scotsman’ fallacy.  Self-identified transwomen have caused harm to women in women-only spaces (see in England Karen White, in Ireland Barbie Kardashian, in Scotland Katie Dolatowski and in Canada Christopher Hambrook, all self-identified transwomen who have harmed or threatened women in women only spaces). Gender critical feminists point out that self-identification makes it impossible to distinguish whether these self-identified transwomen are the men about whom any “right-minded person” would have concerns or whether they are transwomen who do in fact pose a threat. 

 Rights of Access to Single Sex Spaces

“Transgender women have a long history of accessing women-only spaces with little or no evidence that they have caused harm. Indeed, transgender women, with or without a Gender Recognition Certificate, have been legally able to access women-only spaces since the Equality Act 2010.”

The Equality Act 2010 does not give legal rights to any individual to access a single sex space.  The Act instead regulates the rights of organisations and service providers to control  access to single-sex spaces.  It is correct that there is no prohibition in law on the individual transgender person from accessing (or attempting to access) the single-sex space of their choice. Briddock overlooks that the Equality Act states that, in specific circumstances, it is not unlawful for that access to be refused.  It is on this basis that before the self-identification movement took off, transgender people have quietly and without issue been able to use single-sex spaces. They were not breaking any laws or behaving illegally and they were able to use those spaces unless and until objection was raised.  

 Sex Based Exceptions

“Although sex-based exceptions exist, and can be used in exceptional cases to exclude transgender women from women-only spaces, the very existence of these exceptions serves to emphasise that the default position is a right for transgender women to be in these spaces.”

‘Exceptionality’ in law is a term of art, albeit one about which there has been much litigation as to meaning.  Part 7 of Schedule 3 to the Equality Act 2010 sets out various ‘Exceptions’ to the prohibition in part 29 of the Act against discrimination in the provision of services.  Sub-section 27 of Schedule 3 allows for the provision of single-sex services.  It states that the service may be provided to “persons of one sex if … the limited provision is a proportionate means of achieving a legitimate aim.”  Sub-section 28 provides that even in the case of single-sex services, a transgender person may lawfully be discriminated against if it is “a proportionate means of achieving a legitimate aim”.  The provisions of ‘exceptions’ from the general prohibition on discrimination for reason of sex or of gender reassignment does not import any test of ‘exceptionality’ in the sense of rarity or unusual deviation from a default.  In this sense, an exception could be invoked 99% of the time.  The legal test of when these exceptions may be invoked is clear from their text: proportionality in pursuit of a legitimate aim.  

It is imprecise to view the Equality Act as creating a ‘default’ position against all forms of discrimination in all circumstances.  The Equality Act only renders specific forms of discrimination unlawful.  Whilst parts 1 to 16 set out overarching prohibitions against discrimination, the exceptions listed in the schedules are not a minor afterthought but are an integral part of an  Act that make express the fact that not all forms of discrimination are unlawful.  In determining proportionality, the rationale behind their existence is given no less weight than that afforded to the general prohibitions.  

A Class Analysis 

“Most people would agree that excluding an entire class of persons due to a perceived risk of harm to another class of persons should be based on evidence and not just fear. The fact is that fear of transgender women is not based on evidence. On the contrary, the evidence that does exist points in the other direction.”

Under the EA2010 the relevant protected characteristic that comes into play when transwomen who do not have a Gender Recognition Certificate are excluded from women-only spaces is that of sex, not of gender reassignment.  Self-identified transwomen are excluded from those spaces because their sex (as defined by s 212(1) EA2010) is male, not because they are transgender.  There is ample evidence that men (as a class) do pose an unacceptable risk of harm to women (as a class) in many situations.  Transwomen without a GRC fall into the same class as all other men.  

It is assumed that this paragraph, and the one above (“Transgender women … vulnerable minority.”) mean to point to the risk of harm that transwomen face at the hands of men rather than, as they initially appear to suggest, women being the aggressors.  Certain unfortunate wording, coupled with a failure to properly identify the relevant protected characteristics in play has led to an obscuring of an issue at the centre of this debate: how a class distinction can be drawn between men and self-identified transwomen when there is no objective frame of reference by which to do so.  

 Hyperbole

“Baroness Nicholson is a Conservative peer who had been campaigning to exclude transgender persons from single-sex spaces, including hospital wards and changing rooms. She recently said her concern is “about the risk that a small minority of people with malign intentions may seek to use the trans community as a cover to harm and prey on women and children”. This argument suggests that an already vulnerable class of persons, transgender men and women, should be excluded from the Equality Act protections and in reality everyday public life because of the risk that persons not in that class – that is, cisgender men – may have malign intentions.”

This hyperbolic statement has no foundation in law.  Firstly, transgender people would continue to be able to access facilities and services that are appropriate to their sex, or that are indeed focused on the specific needs of the transgender community.  Secondly, retaining the protections that facilitate the provision of single-sex spaces will not remove the specific protections against discrimination that transgender people enjoy for reason of undergoing gender reassignment or on account of their sex.  Indeed, transgender people would continue to enjoy full protection from discrimination etc on the basis of their age, disability, marriage and civil partnership, race, religion or belief or sexual orientation.  

 Failure to properly consider Equality Act Rights

“the vast majority of transgender women do not have a Gender Recognition Certificate but nevertheless have been accessing women-only spaces from time immemorial and have a legal right to do so under the Equality Act.” 

The assertion that the Equality Act creates a right for transwomen to access women-only spaces is repeated, but again without foundation or explanation of how the Equality Act could in fact be interpreted in this way. Likewise, the claim that the Equality Act gives transwomen without a GRC the right to access women-only spaces is unexamined.  The Equality Act is for the individual, a shield and not a sword.  It offers individuals protection against unlawful discrimination by prohibiting certain types of behaviours and processes by service providers, employers, schools etc. It does so by obliging those bodies to refrain from certain behaviour rather than by creating positive obligations.

The concept of, and distinction between positive and negative obligations in law is a complex but important one.  For example, under article 3 ECHR (when a person is in the jurisdiction of the UK) there are positive and negative obligations upon the State to prevent a breach of that person’s article 3 rights, i.e. that the state must take positive steps to prevent someone from suffering inhuman treatment and must also refrain from actions that will cause that harm.  In the context of the Equality Act, it is only the sections that require reasonable adjustments to be made to mitigate against disadvantages suffered by people with the protected characteristic of disability where a positive obligation is created.  The negative obligation to refrain from unlawfully discriminatory acts upon which the rest of the act is based does not create a right for any individual to access a single sex space, but instead prescribes the circumstances in which such spaces may be created and details the criteria by which access to those spaces may be limited.  

Predatory Men

“It is irrational to assume that a man who is prepared to pretend to be a transwoman to sexually assault a person in, say, a public toilet, would simply not commit that crime because the law prevents him from entering that toilet. Allowing an easier form of gender recognition will not change that or create more risk of harm.”

There is no law which prevents any predatory man from being able to access a women’s public toilet.  The Equality Act does permit service providers to designate certain spaces or services as single sex and to deny access to persons who are not of that sex.  It allows those service providers to police the boundaries around women’s spaces and for women to do the same: to act on their feelings of unease if they encounter a man in a woman-only space, rather than being obliged to suppress their concerns.  It is the compulsion on women to lower their guard and to accept members of the male oppressor class into spaces previously reserved for women that will lead to increased harm, not whether predatory men will or will not act within the law.  

We invited Mr Briddock to comment on whether his summary accurately reflects the teaching at the training weekend, and offered him a chance to justify his interpretation of the law. He declined to comment.

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.