Tag: sex discrimination

FWS v Scottish Ministers: what to read before the hearing

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

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

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



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

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

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

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

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

Academics and practitioners

Dr Claire Methven O’Brien 

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

Dr Michael Foran  

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

What is a woman? The Scottish Government’s case 

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

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham 

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method – 

Scott Wortley

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

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

Organisations

Murray Blackburn Mackenzie

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

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

Sex Matters

Sex Matters’ intervention to the Supreme Court 

What about the other side? 

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

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

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

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

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

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

Defining ‘sex’ in the Equality Act

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


Introduction

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

Executive summary

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

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

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

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

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

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

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

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

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

We disagree with the definition of discriminatory practices.

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

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

Our recommendation is that:

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

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

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

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

With regard to conduct outside of work:

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

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

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

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

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

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

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

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

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

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

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

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

We partially agree with these proposals. 

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

However we qualify our response noting that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We agree.

Policing boundaries- social policing and legal remedies

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

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

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

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

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

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

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

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

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

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

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

But Is It Cricket? Giving Women A Sporting Chance

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

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

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

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

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

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

19 Indirect discrimination

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

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

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

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

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

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

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

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

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

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

So her argument is she is put at that disadvantage.

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

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

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

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

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

195 Sport

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

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

(a)fair competition, or

(b)the safety of competitors.

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

Ignore the reference to gender, technically they mean sex.

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

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

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

How To Reconcile The Seemingly Irreconcilable

This is a talk I gave at the FILIA conference on 17 October 2021. 

I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.

The two seemingly irreconcilable principles are

1.    Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic.  No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.

Against that

2.    “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same. 

So how to reconcile this?

Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration. 

Whilst it predates the Equality Act 2010, it follows the same principles.

The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council. 

The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’.  A one size fits all approach. 

This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.

It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.

On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence. 

Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.

The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.

It required:

“due regard for the need –

(a) to eliminate unlawful racial discrimination, and 

(b) to promote equality of opportunity and good relations between persons of different racial groups.”

This wording clearly is the basis for s149 Equality Act  

s149 Public sector equality duty (PSED)

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing. 

In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women. 

Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity. 

It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).

Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally. 

The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now s19 Equality Act.

19 Indirect discrimination

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

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

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

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

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

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

Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.

The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities. 

That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –

“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”

She continued:

“Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”

So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women?  Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?

Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.

She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.

“After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”

She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men.  Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”

Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.

The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.

LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:

“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”

This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all. 

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

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

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

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

However, this may be a trap for the unwary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AEA v EHRC: An Explanation

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

The Claimant 

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

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

The Defendant

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

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

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

Principal area of concern

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

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

The Question of Lawfulness

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

Justified Women Only Services

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

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

Requirement 1

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

Requirement 2

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

The Substance of the Claim

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

Prescriptive Inclusion: The “Must” Approach

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

The Defendant, EHRC, said that 

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

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

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

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

Extent of Justification Required 

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

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

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

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

Whether Appearance is a factor

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

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

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

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

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

The decision

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

He decided it was not, for the following reasons:

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

THE EHRC’s Stance on Single Sex Services

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

The EHRC made two important concessions:

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

What does all this mean?

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

And where should these cases be brought?

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

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

Some of the Misleading Public Guidance

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

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

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

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

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

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

What happens next?

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

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

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

Sex Based Rights: A Remedy To Sex Based Wrongs

What are “sex based rights”? What do women mean by the phrase – and do we even have them? 

A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set. 

What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.

They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so. 

Blackadder misinterprets the Equality Act when Baldrick relies on the single sex exceptions

So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar. 

So the ordinary rule for services is that everything is mixed sex, except where 

  •  “only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
  • “The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
  • “A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
  • The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
  • The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
  • There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.

S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim. 

It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.

In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre. 

Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act). 

(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)

Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages.  What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.

And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services. 

So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not? 

The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.” 

The nineties were a particular hotspot for such arguments, as the marital rape case (R v R [1991] UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”

The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.” 

Indeed, men’s rights activists such as Diana Thomas (writing in 1993 as David) insisted that it was really men who suffered sex based oppression – including by being ‘provoked by neurotic women into committing date rape’.  

None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”

What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”

This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’ 

For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.

If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers. 

For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial. 

While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.” 

While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified. 

While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable. 

Do Right, Fear No One (except possibly Stonewall)

Garden Court Chambers is a prominent and highly regarded set of barristers’ chambers based in Lincoln’s Inn Fields, London. Garden Court prides itself on its “progressive” attitude to law: for example, its members will defend but not prosecute, in common with other “progressive” sets. Its motto, “Do right, fear no one,” reflects its stated commitment to “fighting your corner, no matter how formidable the opponent might seem”. 

So how has such a set found itself at the heart of a legal challenge from one of its own barristers, who accuses it along with Stonewall of discriminating against her as a woman and a lesbian? 

Garden Court is a member of Stonewall’s Diversity Champions scheme. 

Stonewall has recently attracted some accusations of homophobia for quietly redefining “sexuality” to mean an attraction to a gender, not a sex. Stonewall’s definitions, from their glossary, are these:

Homosexual: This might be considered a more medical term used to describe someone who has a romantic and/or sexual orientation towards someone of the same gender. 

Gender: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth

Gender identity: A person’s innate sense of their own gender, whether male, female or something else (see non-binary below), which may or may not correspond to the sex assigned at birth.

So for Stonewall, being L, G or B has nothing to do with a person’s sex, but rather means one is attracted towards a person’s “innate sense” of masculinity or femininity “which may or may not correspond to the sex assigned at birth.”  

The idea that femininity is innate in women – and by extension, that unfeminine women are not women, and that the culturally determined status of women globally is not attributable to patriarchy but innate to women ourselves – is offensive to many women. Many lesbians (and gay men) are aghast at the proposition that sexual orientation derives from some sort of soul-based echolocation and disregards biological sex. 

One of those women is Allison Bailey, a criminal defence specialist at Garden Court, who is herself a lesbian. She sets out in the background to her action that she is the daughter of Jamaican immigrants, a survivor of childhood sexual abuse and an active anti-racism campaigner who spent a night in a San Francisco jail for a peaceful protest in the wake of the acquittal of the officers involved in the beating of Rodney King – in summary, a woman who would seem to typify Garden Court’s ethos.

She was involved in setting up the LGB Alliance in 2019 to advance and protect the rights of lesbians, gay men and bisexuals to affirm themselves as attracted to members of their own or both sexes. LGB Alliance dissents from Stonewall’s position on the definition of homosexuality, accusing Stonewall of homophobia. That has upset Stonewall.

So far, so perfectly ordinary: private citizens are well within their rights to be involved in whatever social and political voluntary work they wish within permissible legal confines, without interference from their employers or their colleagues.  

However, when Allison tweeted in support of the LGB Alliance immediately following its first public meeting, Garden Court hastily put out a disclaimer distancing itself from Allison and her views, instigated a disciplinary procedure, and (she alleges), restricted the flow of work to her, causing her income to drop considerably. Allison says this was done under pressure from Stonewall. 

In her fundraiser, she sets out how in response to her Subject Access Requests, her chambers replied with four lever arch files of documents, while Stonewall blandly denied any correspondence about her. That, as she knew from the documents her chambers had provided, was untrue.  She pursued the inquiry, and this has resulted in her bringing an action against both Garden Court and Stonewall.

The legalities of the action are worth considering. She alleges that Garden Court discriminated against her as a woman and as a lesbian, so on the basis of the two protected characteristics of sex and sexual orientation. At the same time, she says that Stonewall engaged in “prohibited conduct” under s.111 of the Equality Act by instructing, causing or inducing Garden Court to discriminate against her. We are not aware of any other s.111 case that has been reported, so this may be  a legal first.

This week, Stonewall and Garden Court applied to the tribunal to strike out her claim. To succeed, they would have had to show that Allison’s claim was unarguable – that it was so ill-founded that it stood no prospect of success at trial. When a strike out application is heard, the judge has to take the Claimant’s case “at its highest” – because if it cannot succeed even at its highest then it is unarguable. 

Garden Court filed a 120 paragraph witness statement in support of its contention that the claim was unarguable. A cynic might suggest that anything that takes 120 paragraphs to refute or undermine is plainly arguable. Garden Court argued that the claim could not succeed on merits, and Stonewall argued that the s.111 point could not succeed as there was no relationship that could meet the requirement of instructing, causing or inducing. Allison asked for permission to amend her claim.  

In order to establish whether a claim is arguable or not it is inevitable that some of the evidence will have to be referred to. During this hearing, it emerged that Stonewall had leaned hard on Garden Court, writing emails which were characterised by the judge as a “threat” of reputational damage to Garden Court, including that for Garden Court to continue to support Allison “puts us in a difficult position with yourselves”, that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people”, and that Garden Court must take disciplinary action against Allison or, as summarised by her barrister, face the reputational consequences.

Unsurprisingly, the judge concluded that it was at least arguable that this was “inducing” Garden Court to take the steps against Allison Bailey which it did. She also concluded that the Diversity Champions Scheme provided the requisite relationship, and that Allison had a “more than reasonable” argument that the steps taken amounted to discrimination. She refused the strike out application and granted the application to amend.

It remains to be seen whether the Employment Tribunal will conclude in June that the actions of Garden Court and Stonewall were actually unlawful rather than merely astonishing. 

In the meantime though, the question arises as to how much power and influence a charitable organisation should have over individuals with whom it disagrees. Even the most zealous defender of the Stonewall position would, we think, baulk if equivalent pressure were applied by another large and well regarded charity firmly embedded in the establishment – for example, the Church of England. If the Church were to lean as hard on an employer (or chambers) to disown a member for setting up an LGB organisation, there would quite rightly be uproar from Stonewall’s supporters. No charity, no matter how well intentioned, well financed or well regarded, should be able to use a diversity scheme to exert pressure which is at best (on Stonewall’s case) intrusive and at worst (on Allison’s case) unlawful. 

Garden Court is currently recruiting for specialists in business ethics.

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.