This is the text of my talk at the Middle Temple LGBTQ+ Forum Inaugural Annual Dinner last night (unchanged apart from the addition of some links).
How do we arrive at good law making a new criminal offence? Robin says good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need:
evidence of harm
a convincing case that the harm is amenable to legislation
clear proposals
open public debate
Starting with the last: debate.
The proposed ban is one aspect of what we can call the “gender wars” where there has been a strong pressure for “no debate”. Those who have tried have been shouted down, no-platformed, compared to Nazis, and hounded out of their jobs.
Debate informed by evidence is how we test ideas and proposals: if they’re any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. This idea underpins our whole profession.
So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you Nancy – we need to have this conversation.
Evidence of harm
The evidence-base for this proposal is thin.
The government has made the proposal for law without waiting for Dr Hillary Cass to complete her independent review of gender identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University.
The Coventry review admits that for the UK, it only found 2 studies relating to gay conversion therapy, and none on gender identity.
The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it.
But if you look at that survey itself, you find this killer line:
We did not provide a definition of conversion therapy in the survey
That means:
We don’t know how many of those 2% were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers.
We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans.
We don’t even know the sex of the respondents, because the survey didn’t ask.
We don’t have a clue what these responses mean: they’re not evidence of anything.
The consultation admits that there’s no real evidence of harm. It says:
While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.
In other words, the government is saying – we just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.
Case for legislation
Even if there were evidence of harm, not every harm can be put right with legislation; sometimes the cure is worse than the disease. You’d hope a proposal for legislation would address cost and benefit.
But this consultation doesn’t get to that point. Having failed entirely to identify a credibly-evidenced or even defined kind of harm that is its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try.
Last element – clear proposal
The government’s core proposal focuses on children and vulnerable adults, and criminalises a talking therapy delivered
with the intention of changing their sexual orientation or changing them to or from being transgender
This muddles two different things.
Being gay or bisexual isn’t a medical condition. It doesn’t require treatment. We can all agree that practices that try to change people’s sexual orientation are wrong and futile.
Gender dysphoria sufficiently severe to make you seek radical alterations to your healthy body undoubtedly is a medical condition. There are two clues. The word: dysphoria – profound unease or dissatisfaction. And the demand for medical treatment.
Let’s run a thought experiment. Say you’re a therapist. You see an unhappy 10-year-old girl. She wears baggy clothes, and has short hair. She says she’s sure she’s a boy really. She hates her developing breasts, and dreads the onset of periods. She despises all things “girly.”
Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you do that duty carefully and conscientiously.
The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning, she’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.
Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility, and other complications.
This is the most savage conversion therapy ever invented.
It’s homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Many of us here grew up in a profoundly homophobic society. Clause 28 was passed in 1988, when I was 22 and my elder brother was 23. My brother was gay. He killed himself on 13 January 1989. I believe that he died, in part, from the toxic effects of homophobia. Those problems of homophobic bullying haven’t gone away. There is still work to be done, and this is Stonewall’s proper mission.
In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.
Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20
That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection whose real purpose is to criminalise what should be routine responsible therapeutic work.
This is fundamentally dishonest. It is certainly not the path to good law.
The LGBT lobbying group Stonewall seems to be in the news daily at the moment, losing major employers from its ‘Diversity Champions’ scheme, criticised for misleading advice, and damaged by friendly fire from its CEO, Nancy Kelley, who compared dissent from its orthodoxies to anti-Semitism.
From edgy, rebellious beginnings in 1989, Stonewall had grown to become a large and powerful charity with an annual income of over £8M, and an enviable level of access to the Establishment. Its flagship quality mark scheme for organisations, Stonewall Diversity Champions, is a means by which it has persuaded many public and private sector bodies to part with substantial sums of money to be intensively lobbied. A glittering list of heavyweight employers in a wide range of sectors – government departments, NHS trusts, professional regulators, universities, magic circle law firms, household name retailers and many more – had signed up.
But the scheme now seems to be unravelling fast, with new departures announced daily. Why?
The problem, in a nutshell, is that although Stonewall purports provide organisations with advice on complying with the law on equality and diversity, in reality it has been pursuing its own law reform agenda in the guise of ‘training.’ The fact that Stonewall doesn’t have a detached impartial interest in all of the 9 protected characteristics defined by the Equality Act is not in itself a criticism: it is after all a focused lobby group with a particular constituency, and it is entitled to privilege that constituency in its work. But employers and public authorities have different priorities and duties. They’re not entitled to privilege the interests of groups defined by one or two specific protected characteristics over all other groups. If they do – and still more, if they allow themselves to be guided by a pressure group’s retelling of the law as it wishes it were, rather than the law as it is – they are likely to act unlawfully.
The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions creates a wide range of legal risks. What follows aims to provide an indication of some of the kinds of legal problems that organisations may face.
Employment discrimination
Single-sex toilets, etc
Stonewall has widely promulgated the notion that self-identification as trans has legal consequences, and that trans-identifying males are automatically entitled to access women-only spaces. In reality, so far as the Equality Act is concerned, a trans-identifying male without a GRC remains legally male, and can lawfully (and as we shall see, often must) be excluded from any legitimate women-only space; and a trans-identifying male with a GRC may be excluded where it is justifiable.
Employers that accept the Stonewall interpretation of the law and permit trans-identifying males to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims from their female staff. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men, and/or to put female adherents to some religions at a particular disadvantage compared to people who do not share that religion. In either case, the employer will be required to show that its policy is a proportionate means of achieving a legitimate aim. That will be difficult, particularly in light of employers’ duties under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide separate facilities for men and women.
No doubt the great majority of trans-identifying males present no actual threat to women; but some proportion of males do present a threat to women, and there is no reason to expect that proportion to be smaller in the case of the subgroup of males who identify as women. If women suffer sexual harassment as a result of such policies, employers may be vicariously liable for that harassment.
Expanded definition of ‘transphobia’
Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if Stonewall’s definition were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassignment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.
But there are times when sex does matter, and at those times staff can’t simply be asked to ignore it. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans-identifying male has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.
Occupational requirements raise further problems. It is lawful to restrict certain jobs to one sex or the other, if being either male or female is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. So, for example, a department store is undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if a store decides that those jobs can be given to trans-identifying males, then at least arguably they will have destroyed the legal basis on which they restricted them to women in the first place; a man might apply, and sue for discrimination if he is unsuccessful. There is in general no defence of justification for direct discrimination, so an employer that has deprived itself of the shelter of the occupational requirement provisions may find resisting the claim difficult.
Workplace health and safety obligations
Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. The only trans people the law regards as having changed sex are those who have been granted a GRC. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.
Judicial review
Public bodies are bound by the public sector equality duty at section 149 of the Equality Act, and are generally required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which they make decisions, in the performance of their public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.
In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court.
A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance. Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s policy relating to trans-identifying males in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”
In 2021, the campaign group Fair Play for Women successfully challenged the decision of the Office for National Statistics to issue guidance permitting Census respondents to answer the question about sex with their self-identified gender rather than their legally-defined sex.
These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be than the reality of how the law is.
In addition, there may be challenge to a public body’s membership of Stonewall’s schemes. An application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage early this year, because the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review. But the judge doesn’t seem to have been shown material demonstrating the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. In truth, Stonewall’s interest in the activities of its Champions extends well beyond their role as employers, as is demonstrated by a wealth of material now in the public domain thanks to a FOIA campaign. The failure of one application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.
Some concrete examples
There are real dangers for organisations in signing up to any equality and diversity quality-marking scheme that focuses exclusively on one or a small number of protected characteristics. Some of the following possible scenarios are grave in the extreme, but none of them is fanciful:
A swimming pool opens its women-only sessions to trans-identifying males on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans-identifying male wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the duration of a three-year undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.
A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.
A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans-identifying male who does not have a GRC. The NHS Trust’s policy is to treat trans-identifying males as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans-identifying male. The patient is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.
Maria is a social worker employed by a local authority that has committed itself wholeheartedly and visibly to the Stonewall schemes, with allyship training, rainbow lanyards, a procurement policy, active social media accounts, and a commitment to buy-in at all levels of the organisation. Maria’s caseload includes 3 girls in their early teens who have recently started to say that they identify as boys. One of them has asked her about how she can get ‘top surgery,’ and another has recently started binding. Maria’s managers tell her that she should refer these children to a local charity for trans youth. Maria looks into the charity, and is horrified by its ‘only affirm’ approach and its record of encouraging young people to transition. She asks her managers for guidance about alternative sources of support for these children which may explore with them the reasons for their sudden identification as trans, and whether it is possible to resolve their dysphoria or come to terms with their bodies as they are. Maria is disciplined for transphobia and for promoting conversion therapy. She brings a whistle-blowing claim against her employer.
A firm of solicitors adopts writes the Stonewall definition of transphobia into its policies, and in its effort to rise up the Stonewall league table, it sets up a working group to draft a response to a government consultation on reform of the GRA. A female solicitor co-opted onto that working group raises a concerns that self-identification would undermine women’s rights, in the course of which she points out that a GRC doesn’t actually change a person’s sex: it only creates a legal fiction to that effect. A trans colleague complains, and the solicitor is put through a disciplinary procedure on a charge of gross misconduct in the form of harassing her colleague by expressing transphobic views. The disciplinary hearing exonerates her, but the process causes her to take time off work with stress and anxiety. She complains to an employment tribunal of direct discrimination on grounds of her gender critical beliefs, and indirect sex discrimination.
Alex, a child with autism and learning disabilities, is being educated at a mainstream school where children routinely call their teachers “Sir” or “Miss.” His class teacher transitions during the course of the school year, leaving at the end of the autumn term as Mr Hawthorn and returning at the beginning of the spring term as Miss Hawthorn. Alex can’t understand the transition, and continues to call Ms Hawthorn “Sir.” He becomes confused and distressed when told that he must now say “Miss.” The school insists, and Alex’s distress increases until he starts refusing to go to school. Alex sues (through his parents) for disability discrimination.
An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.
A police officer who is a trans-identifying male is permitted to carry out a full search of a female detainee, which the detainee experiences as a terrifying and humiliating sexual assault. The police officer is prosecuted; superior officers face disciplinary charges; and the force faces a civil claim for breach of the detainee’s Article 3 right not to suffer humiliating or degrading treatment.
A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.
Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. Chris, a 17-year-old trans-identifying male wants to join the girls’ First Fifteen. Chris plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows Chris to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite Chris has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.
Membership of the Stonewall Champions or Workplace Equality Index schemes is capable of leading to a significant legal problems for organisations of any kind, in any sector. Depending on the nature of their functions, it may cause them to discriminate against employees, infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm. Organisations should think very carefully – including conducting an equality impact assessment which takes full account of the impact on any policy changes on groups defined by reference to all other protected characteristics before they incur these risks. Organisations that have signed up should conduct a careful review of their policies and practices to make sure that they have not been led into a misunderstanding or misapplication of the law.
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?
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.
The response to my call for action, asking people to submit FOIA requests to public bodies asking them about their dealings with Stonewall, has been amazing – huge thanks to everyone who has taken part so far. Responses are starting to come in, so it’s time to provide some guidance about what to do next.
If the authority has provided all the information you’ve asked for, all you need to do is update the status of your request to “I’ve received all of the information.” That’s it – the information is now there for all to see, and you’ve made a significant contribution to bringing Stonewall’s influence over our public authorities out into the daylight. Thank you.
If the public authority has refused to provide the information, or provided partial or unsatisfactory answers, the next step is simple. You write back to them as soon as possible (but at any rate within 2 months) asking for an internal review.
You can do this through the Whatdotheyknow.com, by clicking on the “Actions” button at the bottom of the page showing your request, and then choosing “Request an internal review.” (Please do do it this way, rather than just emailing the body – so that the answer to the request for internal review is also displayed on Whatdotheyknow.com.)
That brings up a standard letter that goes like this:
Dear [public authority]
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of [public authority]’s handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
[GIVE DETAILS ABOUT YOUR COMPLAINT HERE]
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
Yours faithfully
[Your name]
So all you have to do is write something brief about why you are dissatisfied with the information provided in place of “[GIVE DETAILS ABOUT YOUR COMPLAINT HERE],” preview and check your message, and then send it. If the response to your request gives a reference number for future communications, paste that in – and if they give an email address for correspondence, add that in after “the person who conducts Freedom of Information reviews.”
It doesn’t actually matter very much what you write about why you are dissatisifed with the response. If they say they don’t have the information, and you don’t believe them, you could say that. If they say it would be too expensive to give it to you, and you don’t think that can be right, you can explain why. If they say the information is legally exempt from disclosure, and you think they are wrong, you could explain why you think that.
But really, the main thing is to get someone more senior to have another look at the decision – and to do the thing that you have to do to found a complaint to the Information Commissioner. If you write a persuasive argument and actually change their minds, so much the better – but it’s ok, too, just to write “I don’t accept that the information is exempt/too expensive to provide/ not held.”
I’ll do a worked example. Nottingham University has provided an unsatisfactory response to Ben Green’s request. So Ben could click on the “Actions” button, choose “Request an internal review,” and then complete the standard letter so that it looks like this:
Dear Nottingham University
Your reference 429001
Please pass this on to the person who conducts Freedom of Information reviews, info-requests@nottingham.ac.uk.
I am writing to request an internal review of your handling of my FOI request ‘Information about your dealings with Stonewall #DontSubmitToSTonewall.’
Your answer to my request (3) claims that because the only communications received from Stonewall are generic communications sent to a large distribution list, it would be unduly costly to check all the inboxes in the University that might have received such communications. I do not accept that this is a real difficulty. I do not require to see multiple copies of the same generic communication as it has landed in many different inboxes: it will be perfectly adequate to examine a single inbox that is on the relevant distribution list, and provide copies of all the generic emails that have been received in that inbox.
I do not think your approach to this question is consistent with your duty under section 16 of the Freedom of Information Act to provide advice and assistance to me as a person who has requested information from you, and I would ask you to have careful regard to that duty in dealing with this application for review. In particularly, if you consider that taken literally my request would put you to excessive cost, but you can see a different way of formulating my request that would make it possible for you to respond in substance, then you should suggest that reformulation and offer to respond accordingly.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/xxxxxx
Yours faithfully
Ben Green
If you have questions about how you should draft your request for an internal review, please post them here as comments, with a link to your request. I will do my best to answer them, or at least to answer enough of them to provide some general guidance. If in doubt, just write a very simple letter saying you are dissatisfied with the response, and want to request an internal review.
Many of the 850-plus Stonewall Diversity Champions are public authorities, which means they have to respond to requests under the Freedom of Information Act . So let’s ask them about their dealings with Stonewall – it only takes a couple of minutes.
My previous post suggested that Stonewall had gained an unhealthy level of influence over large employers, especially public authorities.
Many of the 850-plus Stonewall Diversity Champions are public authorities. That means they have to respond to requests for information under the Freedom of Information Act – which is how I was able to write in such boring detail (sorry) about Edinburgh University’s submission to the Workplace Equality Index.
One way of putting some pressure on public bodies to withdraw from these schemes is just to force them to reveal the detail of their dealings with Stonewall. So I’m proposing a simple campaign: let’s send all the public authorities on Stonewall’s list of “Champions” FOIA requests asking them for information. (Though I’m inclined to suggest leaving off the NHS at the moment, for obvious reasons.)
If you can spare a few minutes to participate, here’s what you do.
3. Go back to https://www.whatdotheyknow.com/. Type the name of your public authority into the search box. You may get a couple of results (e.g. searching for “GCHQ” returns “Government Communications Headquarters” and also “Intelligence and Security Committee”), but click on the name that best describes the one you’re looking for.
4. Scroll down the results page a short way to check that there hasn’t been a recent #DontSubmitToStonewall request made to that body. For example, if you search for “Northumbria University” and then click on the name of the body, this is the first thing you see:
So they’ve had a request already – they don’t need another. Choose a different public authority, and try the same thing again. You won’t have to scroll very far to be sure – any of these requests will have been made in the last couple of days.
(Stonewall’s list is helpfully divided into categories, and mostly it will be fairly obvious which are public authorities and which not: every single organisation categorised as “local government” is a public authority; none of those on the “consumer goods and retail” list is; most on “financial services” aren’t, but of course the Financial Conduct Authority and the Financial Ombudsman Service are. If in doubt, search on https://www.whatdotheyknow.com/ – if you find them, they’re a public authority; if you don’t, choose another.)
5. Once you’ve found a public authority that hasn’t yet had one of these requests, click on “Make a request” by their name.
6. The site gives you a blank request form starting “Dear [name of authority].” Underneath that, paste the following text:
This is a request under the Freedom of Information Act 2000 (FOIA). Please provide any information that you hold answering to any of the following descriptions:
1. Any application you made in 2019 or 2020 to be a “Stonewall Diversity Champion” or to be included on Stonewall’s “Workplace Equality Index,” including any attachments or appendices to those applications. Please redact personal details if necessary.
2. Any feedback you received in 2019 or 2020 from Stonewall in relation to either application or programme.
3. Any other communication you have received from Stonewall in 2019 or 2020 unless privileged or otherwise exempt from disclosure (but if you claim privilege or exemption in relation to any material, please say in broad terms what the material is and the basis on which you claim to be entitled to withhold it).
4. Full details of any equality impact assessment you carried out connected with any of these applications (including any equality impact assessment carried out prior to an earlier application of the same kind, if no further assessment was done).
5. Details of the total amount of money you paid to Stonewall (i) in 2019; (ii) in 2020, whether or not as payment for goods or services.
6. Whether you intend to continue your membership of any Stonewall scheme in the future, and if so which.
There’s also a box for a summary of your request above that, so paste in there:
Information about your dealings with Stonewall #DontSubmitToStonewall
Please do include “#DontSubmitToStonewall” to make it easy to find a complete list of these requests in the future, and also to help guard against the same authority getting lots of duplicate requests.
7. Ignore the warning that your request is getting long (it’s fine – it’s focused and perfectly fair), and click on “Preview your public request.” Check everything is in order – including the all-important hashtag. Once it is, click on “Send and publish your request.”
8. That’s it for now. I’ll post again in early March (when the responses to these requests should start coming in) with guidance about requesting an internal review, if your request is refused or not satisfactorily answered.
Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.
Stonewall is an LGBT charity and lobbying group that started small, edgy and rebellious in 1989. It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.
Stonewall’s employer programmes
Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme.
More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé; Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.
It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single oneof the top 100 employers on the Workplace Equality Index is also a Diversity Champion.
Qualifying for the Workplace Equality Index
So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers? Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”
The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections:
1. Policies and benefits
2. The employee lifecycle
3. LGBT Employee Network Group
4. Allies and role models
5. Senior leadership
6. Monitoring
7. Procurement
8. Community engagement
9. Clients, customers and service users
10. Additional work
Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for. The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.
Sampling the submission
Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks:
Does the organisation have a policy (or policies) which include the following? Tick all that apply.
A. Explicit ban on discrimination based on sexual orientation
B. Explicit ban on discrimination based on gender identity and gender expression
C. Explicit ban on bullying & harassment based on sexual orientation
D. Explicit ban on bullying & harassment based gender identity and gender expression
E. None of the above
The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies.
There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean. If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it.
The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.”
Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.
Question 4.5 asks:
Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?
The University describes the training:
A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.
Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.
…
We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.
This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around.
There are pages and pages of this stuff. The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.
Feedback
One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply. This sample from section 1 (“Policies and benefits”) is representative:
[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.
Submission without reservation
You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this:
You pay for lots of Stonewall training.
You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training.
You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way.
Stonewall set you a lengthy open-book examination on how well you’ve done that.
You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc.
Stonewall mark your submission and give you feedback on areas on which you could improve your compliance with their every demand, very likely involving more Stonewall training.
You do the same again next year.
It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?
Why are serious organisations full of serious grown-up professionals willing to submit to these time-consuming indignities?
What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?
You might think employers would discern a significant reputational risk – not only from being associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride.
But there are concrete legal risks too.
Judicial review of policies
If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies. (Though your staff may care; I’ll come to that shortly.)
But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review. You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.
In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court.
A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance.
In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.
Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”
These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be in than the reality of how the law is.
Judicial review of participation in Stonewall’s schemes
Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both.
A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review.
That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:
Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk.
As a public body, we should know what’s going on with the CPS.
Has Stonewall trained CPS?
In fact, thanks to M Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’ If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.” Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.
As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:
Has the organisation done any further work in the past year to improve the working environment for LGBT staff?
The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all functions, private or public.
In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion:
The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation.
The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.” Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well.
In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.
Discrimination claims
Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.
Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.
If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.
Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.
But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.
If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system.They are not entitled to do that:disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)
Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man.
There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.” It is the only equality policy the University has which is specific to a single protected characteristic.
Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff.
Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status.
In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women. And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.
Workplace health and safety obligations
Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.
Duties to service clients, service users etc.
The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful:
A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.
A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.
A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.
An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.
A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.
Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.
Conclusion
Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly.
If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.
But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm.
