Schrödinger’s PCP

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In AEA v EHRC [2021] EWHC 1623 (Admin), Henshaw J refused the claimant permission to seek judicial review of the EHRC Code of Practice on Services, public functions and associations. AEA had challenged various aspects of the CoP, but in particular a paragraph that asserted that service providers offering single-sex or separate-sex services should treat transsexual people according to the gender role in which they present (I’m just going to write “single-sex” in what follows, but ​everything applies equally to separate-sex services). AEA argued that that misstated the law: any lawful single-sex service is entitled to exclude everyone who is not of the sex in question, irrespective of what other protected characteristics they might have. 

 A decision refusing permission for judicial review has no status as precedent, so the judgment is not binding on any other court or tribunal. But it has attracted some attention nevertheless, partly because of the heightened feelings on both sides of the “gender war,” and partly  because of the trenchant terms in which it is expressed. The judge repeatedly dismisses AEA’s arguments as “clearly wrong”, “clearly incompatible with the tenor of the Act,” and even “an obvious absurdity.” 

That makes me think it’s worth taking a look at some of the detail of Henshaw J’s reasoning. First, a very short introduction to the Equality Act 2010 and how it works. 

The Equality Act 2010

The Equality Act prohibits various kinds of discrimination on grounds of specified “protected characteristics” – age, sex, race, etc. – in a number of specified contexts. The Act is structured as follows. First (after some preliminary material that doesn’t matter for my purposes), it defines the protected characteristics. There are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

Next, the Act defines various different kinds of discrimination: direct, indirect, harassment, failure to make reasonable adjustments for person with a disability, etc. The two that matter for present purposes are direct and indirect discrimination. Direct discrimination is treating someone less favourably than others because of a protected characteristic. Indirect discrimination is the application of a provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared with others, and cannot be shown to be a proportionate means of achieving a legitimate aim. 

Note that, thus far, the Act hasn’t prohibited or required anything: these initial parts of the Act simply set up the definitions that are going to be relied on in the later sections that actually tell you what you are and are not allowed to do. 

The real work of the Act is done in parts 3 to 7, which prohibit discrimination in various different contexts: services and public functions, premises, work, education and associations. These prohibitions are modified by various exceptions and qualifications, some to be found in the Act itself, and some one or other of its Schedules. 

Part 3 of the Act prohibits discrimination in the provision of services and public functions, and schedule 3 provides for exceptions to those prohibitions. 

The argument 

Among the schedule 3 exceptions, there are rules intended to make it possible to run single-sex services if certain conditions are met. AEA had argued that if it’s lawful to operate a particular single-sex service for women, then it must necessarily be lawful to exclude all men from it: otherwise it’s not single-sex. So far, so obvious, you might think. If that was right, the EHRC guidance saying trans people should be treated according to the gender role in which they presented was erroneous. 

The EHRC had come up with a clever answer. Schedule 3 says that where the conditions for a women-only service are in place, it’s not unlawful sex discrimination to exclude all males. But it doesn’t say that it can’t be unlawful discrimination on any other ground. So, EHRC argued, a rule excluding all men from the service might turn out to be unlawful indirect discrimination on grounds of gender reassignment.

That was a neat argument, but there was a neat answer. Once the conditions of paragraphs 26 or 27 of schedule 3 are met, the sex discrimination inherent in the rule is excused, but it’s true that those paragraphs don’t exclude the possibility of indirect discrimination on some other ground. And it is clear enough that excluding all men from a service could sometimes put men with the PC of gender reassignment at a disadvantage compared to men without that PC, if it was a service they needed and for which there was no unisex provision where their presence would be unremarkable. So a complaint of indirect discrimination within the meaning of section 19 of the Act might be brought, and if it did a question might arise whether the rule excluding men was a proportionate means of achieving a legitimate aim. 

But at this point it becomes clear that indirect discrimination takes matters no further forward. It is only lawful to offer a single-sex or separate-sex service under paragraph 26 or 27 of schedule 3 if “the limited provision is a proportionate means of achieving a legitimate aim.”  This is the exact same question asked by s.19 to determine whether there is indirect discrimination. If the limited provision is not a proportionate means of achieving a legitimate aim, then it’s not lawful to offer a single-sex or separate-sex service at all. If it is lawful to offer a single-sex service, then ex hypothesi, the limited provision (and with it the rule excluding men) is a proportionate means of achieving a legitimate aim.

It follows as a matter of inexorable logic that if it is lawful to offer a women-only service, it’s lawful to exclude all men from it – including those who identify as women. 

One can reach the same conclusion by a shorter route. If it is lawful to offer a single-sex service for women, then of course it is lawful to exclude all men from it: otherwise it’s not single-sex, but mixed.

At ¶15, Henshaw J says this: 

The claimant submits that if a difference of treatment can be justified vis-a-vis birth men in general, then it is inconceivable that it cannot equally be justified vis-à-vis birth men who are transsexual women. On that approach, though, the Equality Act’s gender reassignment provisions would in substance provide no protection at all, in the context of an SSS, to transexual persons without a GRC.

Since the AEA’s contention was exactly that – that the gender reassignment provisions provide no protection at all to trans persons without a GRC so far as the operation of single-sex services is concerned – what this boils down to is “But on the claimant’s approach, the claimant would win!”  The same point recurs at ¶17: 

In my view, the claimant’s argument is an obvious absurdity because it would construe s.19 in such a way that Schedule 3 para. 28 could never apply to a transexual woman lacking a GRC who complained of indirect discrimination vis-à-vis birth women.

Again – that was exactly AEA’s point: paragraph 28 of schedule 3 would never arise in the case of a trans-identifying man without a GRC. So this means “The claimant’s argument is an obvious absurdity because it would lead to the claimant winning its argument.” This is a particularly pure specimen of the logical fallacy called “begging the question”: that is, assuming as part of your argument that which is to be proved.

This is odd. They don’t as a rule appoint fools to the High Court bench, and everything about Henshaw J’s career to date confirms that he’s no exception. And yet the logical fallacy is plain to be seen – twice. What’s going on here? Why did the judge find it so unthinkably absurd that AEA could be right in saying that if the law lets you restrict a service or space to women, it’s ok to – well, restrict it to women? 

I don’t know the answer to that question. I have a guess – actually I have two guesses. The first is that the promulgation of ‘Stonewall law’ has been so successful that large parts of the educated elite have absorbed it as a commonplace ‘known fact’ that it is unlawful except in the most extreme circumstances to restrict trans people’s access to spaces and services provided for the opposite sex. When AEA argued that trans-identifying males without GRCs could be routinely excluded from any legitimate female-only space or service, that came into conflict with something the judge thought he had known for ages. My second guess is in the coda at the end of this blog. 

Paragraph 17 continues:

[T]he claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29 [this is presumably a typo for 28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination.

It is not clear why the judge thinks that an approach that puts trans-identifying men without a GRC in the same position as other men for these purposes is incompatible with the tenor of the Act. The Act prohibits discrimination on various grounds as well as sex and gender reassignment; but the point – indeed the very definition – of single-sex services is that they exclude one sex. It follows that a single-sex service for women will exclude all men, irrespective of their other protected characteristics: if that goes for race, disability, sexual orientation, age, religion or belief, why would it not also go for gender reassignment?

The error into which the judge appears to have fallen is to conflate the right not to suffer  discrimination on grounds of gender reassignment with a right to be treated as the opposite sex. A trans-identifying man excluded, for example, from the ladies’ has not suffered discrimination on grounds of gender reassignment, because a non-trans-identifying man would be excluded just the same. To the extent that the law provides for a right to be treated as the opposite sex, that is done through the mechanism of the Gender Recognition Act 2004, but only for the benefit of those who have a gender recognition certificate.

At ¶16, the judge says: 

In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable that regard must be had to its impact on persons with the protected characteristic in question. It is clearly wrong to assume, as a matter of law, or as a matter of obvious practice, that the answer will necessarily be the same whether one assesses a PCP as applied to birth males in general or whether one assesses it as applied vis-à-vis birth males who are transsexual women.

This is surprising. The words of the justification provisions are identical in s.19 and in ¶¶26 and 27 of schedule 3: what needs to be shown is that “the PCP” in one case or “the limited provision” in the other is “a proportionate means of achieving a legitimate aim.” Given that the PCP is the rule excluding one sex, a court seized of a question about the lawfulness of a single-sex service would be answering at both points the question “is the rule excluding men a proportionate means of achieving a legitimate aim?” The judge in AEA appears to think that that question could have one answer for the purposes of ¶26 or 27, and a different answer for the purposes of section 19. The rule is either a proportionate means of achieving a legitimate aim, or it is not: it can’t be both a proportionate means of achieving a legitimate aim and not a proportionate means of achieving a legitimate aim at one and the same time.  

Coda – on words 

I was junior counsel for AEA in this case.  Before that hearing, I had been willing – out of politeness, and sensitivity to the feelings of trans people generally – to write and speak of “trans women,” and use feminine pronouns, even when not referring to real individuals but exploring hypotheticals and generalities. Listening to argument in court that day was a personal tipping-point. It became vivid – to me at least – in the course of the hearing that the unreal language being used by everyone was obscuring the logic of the arguments and confusing the court. It’s much easier to see at a glance that a legitimate rule excluding men will legitimately exclude all men if your language acknowledges that all the people whom it excludes are indeed men. 

Thinking, speaking and writing of “trans women” or “transsexual women” primes our minds to conceptualise trans-identifying men as a kind of woman. They are not: men are still men – however they identify, whatever they wear, and whatever treatment they may have undergone to modify their bodies to look more like women’s bodies. Those of us who would defend clarity and rationality in this area of the law need to hold that line. 

17 thoughts on “Schrödinger’s PCP”

  1. Please tell me that this article has been sent to Henshaw J and the Lord Chief Justice with a request for an explanation.

    1. Ha! But that’s not how it works – which is a good thing, in fact. If a judge gets it wrong, you either appeal, or try again and hope to get the judgment overruled if it’s a precedent; or where the wrong judgment isn’t a precedent, you just try your arguments again in front of a different court and hope for a different result.

      1. Thank you very much for this – I had been wondering exactly what had happened in this case. Can’t AEA appeal or go for another JR (though realise the expense etc…) ? This still needs clarifying in the Courts surely given the confusion ?

  2. There are all too brief moments in which I think I understand these provisions, only for them to swim frustratingly out of view once more.

    Isn’t one difficulty for your interpretation that it renders para 28 redundant? A trans person can’t bring a direct discrimination claim because the reason for their exclusion is their sex rather than their gender reassignment; in relation to an indirect claim, para 28 merely restates the objective justification defence under s. 19 – so what purpose does it serve?

    (I see the explanatory note says that para 28 restates an equivalent provision in the Sex Discrimination Act 1975. I haven’t yet laid my hands on that and would be interested to know if it sheds any light.)

    1. I don’t think it does render ¶28 redundant, because ¶28 is about discrimination on grounds of gender reassignment. Paragraphs 26 and 27 are about discrimination on grounds of sex.

      So if someone is excluded from a single-sex service for women not because of their sex (i.e. not because they are male), but because they are trans, ¶28 means that that is permissible only if it’s a proportionate means of achieving a legitimate aim. One possible example would be a trans-identifying woman who had taken testosterone and whose broken voice and facial hair, and convincingly “passed” as male: if you wanted to exclude her – because, although she’s female, everyone is going to read her as male – you could rely on ¶28. Similarly, a trans-identifying man with a GRC, who is legally a woman for the purposes of the EqA – excluding him doesn’t seem to be sex discrimination, because s.9 of the GRA deems him to be a woman: so ¶¶26 or 27 don’t arise. But excluding him is discrimination on grounds of gender reassignment, so you could still justify it under ¶28.

      Note that for ¶¶ 26 and 27, and s.19, it is the rule that has to be justified. For ¶28, it is the conduct. So – at least arguably – “case by case” does come in if you’re relying on ¶28: but you don’t need ¶28 to exclude trans-identifying men who do not have a GRC.

      1. I do not think the GRC is relevant for the purpose of the Equality Act? It is never even mentioned (except once in relation to marital benefits) and the definition of woman in s212 clearly refers to biological, not legal, women. It would be absurd otherwise because possession of a GRC is confidential, so no-one could provide a service where legal identity is not checked without that service automatically becoming mixed sex. Clearly toilets are divided by biological, not legal, sex (with the proviso that if you ‘pass’ as the opposite sex nobody is going to question your presence). The GRA and the EA where never written to provide for men who claim they have a female penis.

        1. Well, s.9 of the GRA says “for all purposes” – and then makes some specific exceptions; but neither it nor the EqA says “not for the purposes of EqA.” So my view is that it’s quite hard to argue that a GRC doesn’t deem a man to be a woman and vice versa for the purposes of the EqA. I don’t think all the practical implications of the confidentiality provisions in the GRA have been properly worked out, and I think the resulting situation is pretty buggy. So I don’t defend this as how the law ought to be – but I think it is how it probably is.

          1. I think that means for all *legal* purposes in which disclosure of sex would be expected (such as marriage). Since obtaining a GRC does not depend on any physical modification, i do not think it is a reasonable interpretation that having a GRC imposes any duty on third parties, who do not even know the person has a GRC, to treat this obvious male as a female. It would mean that we could never make distinction between males and females because they could all be GRC holders. As badly worded as the GRA is I think the for all purposes is reasonably clear. Any other interpretation is unworkable and/or absurd.

    2. I find it interesting that throughout his judgment Henshaw J uses the term ‘transexual’. I have not read the full judgment, so this is a question rather than a statement: is it possible that Henshaw J is conflating sex with gender?

  3. It seems to me: Sections 27 & 28 are about providing a single/ separate sex service. Section 28 is about any conduct in relation to providing that service –

    So for example that conduct can include having a rule, asking people their sex, requiring people to answer honestly (or in practice expecting that by accessing the space with the sign on the door that they recognise they are being asked and being required to answer honestly).

    As the EHRC says, this conduct of asking someone’s sex/ expecting them to self identify as the correct sex may be detrimental for a person with a cross sex identity (even if they are not excluded from the correct sex service) but it can be justified as a proportionate means to a legitimate aim.

    Less discriminatory conduct would be to also have an option where no questions are asked (i.e. unisex)

    The EHRC slips between saying it can be indirect discrimination to ask someone their sex, or to only allow them to use same sex facilities and saying that therefore someone should be allowed to use opposite sex facilities.

    In this case I think the question of what is a proportionate means still applies to the policy/facility/building (are all toilets sex segregated, or is there also a unisex option which accommodates those who don’t want to acknowledge their sex?) rather than the individual.

    Of course conduct which amounts to harassment wouldn’t be justified, but staff should be able to politely and clearly communicate the rules on who is allowed in which spaces and services and take steps to enforce them.

    The example given in the legislation for section 28 seems to suggest 1) a rule not an individualised assessment 2) it is belt-and-braces to exclude a transsexual male even if they are legally female (e.g. they might have a GRC)

    “A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.”

    The EHRC Service providers Code of Practice (13.60) departs from the example in the legislation and says
    “A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access
    to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). ”

    It is not clear what individualised circumstances could possibly be discussed either with the transsexual person or with other users of the service to make this determination, without invading their privacy — and the wording in Section 28 certainly doesn’t seem to demand it.

    1. I mostly agree. I think there’s an interesting and ticklish question about what exactly is “the conduct” which must be justified in the case of ¶28 (which in my view will only ever arise in relation to a trans person with a GRC). Is it (for instance) the rule that, in general, the bra fitting service is only available to biological women? Or is it the *particular* conduct – e.g. refusing this particular trans-identifying man access to the bra fitting service? And actually, does it matter? If in fact the rule itself is a proportionate means of achieving a legitimate aim (and, if you like, that rule together with a meta-rule that there are to be no exceptions to the rule, and in particular no making of invidious judgements about the extent to which a particular individual “passes”), then isn’t it going to follow in practice that each application of that rule will be justified?

      So the “case by case” decision-making so much beloved of many trans rights activists may turn out to be largely illusory. Let’s hope so – because “case by case” is for the reasons you touch on fraught with difficulty and embarrassment for everyone.

  4. Thank you for a clear discussion of this issue, as ever.

    I agree with your final sentiment that the words we use affect how we think, and so for the sake of clarity, our words should match the reality rather than “polite” fictions.

    Indeed, I suggest, and wonder what you think, that the fictions are not even polite. Gender identity is a philosophical belief (Maya’s EAT ruling, footnote 1). Thus to invite someone to use “preferred pronouns” is to invite acceptance of, and joining in with, that belief. In areas covered by the Equality Act, this looks like harassment to me – especially if repeated. By analogy, if a Christian says “pray with me” (i.e. join in with my belief system), and insists on colleagues doing so, that would be clearly seen as harassment of those who do not share the belief. It would not be tolerated. Respecting the Christian as a colleague, and respecting his or her right to hold certain beliefs do not entail joining in with them. A person who does not share gender identity beliefs should not be required to express them by saying “she” of a man.

    1. A lot of the problem with pronouns, I think, is the nature of the demand for them. For most of my life, I’ve been perfectly happy to extend trans people the courtesy of using their preferred pronouns, and until relatively recently it had never crossed my mind that doing so implied I was assenting to beliefs I didn’t share. Indeed, until only a very few years ago, I was wholly unaware that anyone claimed that “trans women” were literally women – I was incredulous when I first encountered that claim, which seemed to me to be so obviously counter-factual that no sane person could make it. So I was willing to use preferred pronouns, assuming we were all on the same page about what they did and didn’t signify.

      But the situation has changed. Now we are told that we must agree that trans women are literally women. Preferred pronouns are demanded as a right – and as implied assent to that claim. If we dissent, we are threatened – we may be bullied, harassed, hounded out of our jobs, no-platformed, even physically assaulted. So what I used to offer freely as a courtesy now feels to me like a gesture of submission to bullies. I don’t like being bullied, so that’s a gesture I’m not prepared to make.

      The fable of the sun and the wind comes to mind.

    2. I agree that the AEA decision makes little sense, but isn’t sch 3 para 28 , a bit of a difficult one. It seems to implicitly assume that excluding people with the PC of GR from single sex services re their assumed sex would be indirect discrimination unless excluding them is a proportionate means of achieving a legitimate aim. I take your point that this could be aimed purely at the people with the PC of GR who have a GRC, but the fact that the para makes no such distinction and just refers to GR per se makes that a difficult one I think. Interested in your thoughts.

      1. I don’t think it’s really aimed at indirect discrimination at all – I don’t think anyone in drafting those provisions was thinking that anyone might say “ha! your single-sex service may be lawful from the point of view of sex discrimination, but it’s unlawful anyway because it indirectly discriminates on some other basis.” I think that’s clever lawyer stuff, dreamed up to try to win a difficult argument.There seems to me to be an absurd “hang your clothes on the hickory bush – but don’t go near the water!” quality about the idea that keeping men out of a women-only space might turn out to be unlawful indirect discrimination.

        So what I think ¶28 is about is direct discrimination on grounds of gender reassignment. Being refused entry to a women-only space because you are male isn’t gender reassignment discrimination, it’s sex discrimination. But if – say – a “passing” trans-identifying woman (or “trans man”) were refused entry on the basis that everyone would read her as male, and that would be upsetting, that probably would be direct discrimination on grounds of gender reassignment. Paragraph 28 allows you to justify that exclusion as a proportionate means of achieving a legitimate aim. Similarly, I think possession of a GRC changes nature of the discrimination. A trans-identifying man with a GRC is deemed to be a woman: so if he is excluded, that’s not sex discrimination, because a person of the opposite sex – a man (in law if not in reality) – would equally have been excluded. But it is gender reassignment discrimination, because a woman without the PC of gender reassignment would have been admitted.

  5. I understand your point. Since this particular ruling sets no precedent, the need to appeal isn’t urgent.
    A matter where the possibility exists of setting precedent favorable to women, and which looks winnable (equally important), will come along sooner rather than later.
    In the meantime, it’s best to keep your powder dry.

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