We are the two groups involved in this campaign: it was launched by Naomi Cunningham on this blog in February, and analysis of the information and related policy work is now being undertaken by Sex Matters. We have read your notice of 24 May responding to multiple complaints, and we are pleased that you have resisted the attempt to close down our collective public transparency project. Thank you for allowing the requests – and the substantial amount of information disclosed as a result – to remain on your site; and for staying true to your goal of helping citizens to understand how power is wielded, and acting together to challenge abuses of power.
We read your report Who Benefits From Civic Technology? highlighting the tendency of civic technology platforms to have predominantly male user bases. As you note, civic technologies lower the barrier to individuals engaging with public bodies, but women face more barriers than men both offline and online. One of those barriers is that when women speak up in the public square they are often shouted down, piled on and unreasonably criticised and harassed.
But we note that this report ignores sex, talking instead about “genders,” and describes users as “identifying as Male” and “identifying as Female”. We don’t believe that being a man or a woman is simply a matter of identity; sex matters. We also note that the vast majority of the volunteers who run WhatDoTheyKnow are men.
The report says, “If platforms have disproportionate usage by one gender, there is potential for the gender associated with lower usage to be marginalised, or at the very least, have issues relevant or important to their gender marginalised.” It gives an “example” that women are more likely to push buggies or shopping trolleys and are concerned by broken pavements, whereas men are more concerned by potholes damaging their cars.
Women are more concerned by the replacement of sex by “gender identity” in public life, because it is predominantly women who are suffering the associated harms: the sexist reinforcement of gender norms, the impact on women’s safety, privacy and dignity, the destruction of women’s sport, and the threats to our ability to discuss the reality of women’s lives.
Our campaign provides a real life example, and a real world test of your commitment to sex equality. Some women ventured onto your site and organised a campaign to crowdsource related FOI requests. They used a memorable phrase (not unlike “Fix My Streets”) and the common internet device, the hashtag. They appear to have been targeted by multiple complaints aimed at silencing them, calling their legitimate FOI requests vexatious or hateful. The CEO of the powerful organisation about which they were concerned also complained about them publicly.
After careful consideration you found nothing that came close to “unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, discriminatory or profane” content” in the requests, nor were they vexatious. But rather than dismissing the coordinated complaints themselves as vexatious, you felt compelled to distance yourself from the female campaigners using the site and to remove their hashtag. That damaged our ability to coordinate organic community action; the core purpose of MySociety.
Like you, we support the rights to equality and freedom from harassment for transgender people. We also support the rights of women not to be discriminated against based on their sex, to retain control of their bodily privacy and personal boundaries, and to have access to single-sex spaces and services. These are modest and reasonable demands, upheld and enshrined in the Equality Act 2010; and yet, because we defend them – and argue that the law as it now is should be correctly interpreted and applied – Stonewall and its fellow travellers seek to demonise us as hateful bigots.
The intention behind the hashtag was to make it easy to find requests, and to allow participants to check whether a public authority had already been covered: we had no wish to inconvenience or hound organisations with repeated requests.
We are indeed seeking to exert pressure on public bodies to reconsider their involvement in the Stonewall scheme which we believe is inconsistent with the Nolan Principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership (Sex Matters is calling for a public inquiry).
We are not seeking to do this through making nuisance or vexatious requests – but by using FOI to uncover the nature and extent of Stonewall’s influence, in order to promote scrutiny and debate. We believe this is wholly in line with the spirit of “What Do They Know” which exists to create collective knowledge and allow people to act together as citizens and communities empowered by access to information. Indeed the new “projects” feature is designed to do just that, and we hope to develop a campaign in future using it.
Rather than banning the use of hashtags, you could regard this as a helpful model for anyone else contemplating a similar collective FOI campaign. We hope that you will reinstate the hashtag, and reflect on how the dynamics that drive women out of the public square (both real and virtual) have been replicated on your platform by the vexatious complaints you received. Or, if you wish to operate a general prohibition on explicitly campaigning hashtags, you could substitute a more blandly informative hashtag; #Stonewall or #DealingsWithStonewall would do.
We hope you will post a link to this response (or the response in full) on your website, and we would be happy to continue this discussion with you.
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.
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.
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 previouslyset 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.
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 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 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)
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 )
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 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:
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.
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.
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.
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.
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:
It distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women,
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.