The Equality and Human Rights Commission has published a long-overdue revision of its technical guidance for schools. Technical it may be, but it relates to a school’s fundamental obligation – safeguarding the children in its care. So far as it relates to schools’ responsibilities in relation to children who assert a trans identity, it is a considerable improvement on its predecessor; see https://sex-matters.org/posts/updates/what-is-new-in-the-ehrc-guidance/ for a clear and accurate account of the changes. 

Barrister Robin Moira White, writing on the website Translucent, is unimpressed with the new guidance.

White starts by noting, correctly, that the law has not changed: anything that was unlawful before the new guidance was issued remains unlawful. The piece accurately quotes the Equality Act’s definition of the protected characteristic of gender reassignment, and notes that it is possible for schoolchildren to have that protected characteristic. After that, the piece rapidly parts company with reality, largely because it works backward from the end it seeks to justify.

The meaning of “sex”

There is live litigation about whether “sex” in the Equality Act means “sex (as modified by operation of a GRC, where one has been granted)” or simply “literal sex”. Both of those possibilities are plainly arguable: Lady Haldane in For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90 found that it meant the former; the appellant will argue on appeal next month that it means the latter. But White proposes a third possibility: that “sex” in the act means the “acquired gender” of those who have done everything they can to align their physiology with their gender identity; and that since in practice children cannot normally undergo surgery at all, or cross-sex hormone treatment before the age of 16, children might meet that standard through “social transition” alone. 

The first step in this arguments rests on the decision of the House of Lords in Chief Constable of West Yorkshire Police v A ( No 2 ) [2005] 1 AC 51 (at any rate, this appears to be the case meant when the author cites “A v Chief Constable of West Midlands” ). In A, the House of Lords felt constrained by the Equal Treatment Directive to find a way of giving legal recognition to the extreme steps that the claimant had taken to achieve a female-looking body before the Gender Recognition Act 2004 had become law.  A is an interesting moment in legal history, but it was a brief moment: soon after, Parliament enacted the Gender Recognition Act 2004, which came up with a different solution to the problem. 

But even if A had not been superseded by legislation, the next step in White’s argument is even more optimistic. In A, Lord Bingham said: 

“[E]ffect can be given to the clear thrust of Community law only by reading ‘the same sex’ in section 54(9) of the 1984 Act, and ‘woman’, ‘man’ and ‘men’ in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender.”

White suggests that because children cannot in practice do much to remodel their bodies so that they look more like the opposite sex,  simply presenting themselves differently and asking others to use counterfactual language about them may amount to doing all they possibly can to “transition”, and therefore the law will see them as having literally changed sex even without surgery and hormone treatment. But even accepting that a post-operative transsexual might be “visually and for all practical purposes indistinguishable” from a member of the opposite sex (though one does have to wonder what practical purposes Lord Bingham can have had in mind – not, presumably, the practical purposes to which sexed bodies are most obviously adapted), a child with an unaltered body certainly cannot meet that criterion. 

White says, “this proposition remains to be tested in court”. This is true; but only in the sense that a great many self-evidently false propositions about the law remain to be tested in court. 

“Misgendering”

Here White repeats the zombie claim that a failure to pretend that a person asserting a trans identity has changed sex is direct discrimination on grounds of gender reassignment: “referring to a trans pupil by the name or pronouns they have rejected would clearly appear to be subjecting them to a detriment by reason of their protected characteristic and so unlawful direct discrimination”. 

This is wrong, and obviously so. If a school refers to all pupils by the pronouns appropriate to their sex, it is not singling out children who say they have a trans identity for special treatment – it is simply applying the same rule to everyone. That may be indirect discrimination, but it is certainly not direct discrimination on grounds of gender reassignment or any other protected characteristic. 

White touches on indirect discrimination, saying “A practice of referring to all pupils by birth pronouns or names would appear to be a practice disadvantageous to those with the protected characteristic of gender reassignment and so unlawful indirect discrimination.” This treats disadvantage as self-evident, and skips over the crucial question of justification entirely. 

Disadvantage is not self-evident. The rule may be said to be a practice that puts children with the protected characteristic of gender reassignment at a particular disadvantage compared to other children, but that in itself is a claim that would need to be established by evidence. There is little or no evidence that the experiment of “social transition” is beneficial for children, and mounting evidence that it may be harmful, both by locking in a cross-sex identity which might otherwise have resolved with puberty, and by contributing to the spread of cases of gender dysphoria by social contagion. Making the question of “particular disadvantage” an issue in legal proceedings could have consequences for which the sex realists would have more relish than their sex-denialist opponents. 

A provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared to others is only unlawful indirect discrimination if it cannot be shown to be a proportionate means of achieving a legitimate aim. White fails to acknowledge this, going straight from an unexamined assumption of particular disadvantage to a conclusion that the practice must be unlawful. But the justifications for a policy of truthfulness about sex in a school are many, and obvious, particularly once one pays attention to the rights and interests of the other children in the school. An indirect discrimination claim about “misgendering” is unlikely to succeed. 

Toilets and changing rooms

The law on toilets and changing rooms is clear. Schools are required to provide separate single-sex facilities for boys and girls over the age of 8; if they let some boys use the girls’ or some girls use the boys’, they will have (unlawfully) made those facilities mixed sex. There is no ambiguity here at all. 

White claims that excluding a child with a trans identity from opposite-sex facilities is highly likely to be direct discrimination, and failing that unjustifiable indirect discrimination. 

Both claims are wrong. It is not direct discrimination to apply the same rule (“you may only use the facilities provided for your own sex”) to everyone; there is no different treatment of children asserting a trans identity that could provide a basis for a direct discrimination claim. It is not because a boy who says he is a girl has the protected characteristic of gender reassignment that he is excluded from the girls’ toilets, but because he is a boy. 

As for indirect discrimination, White says that justification would be difficult if there is no evidence of “inappropriate behaviour” in the use of toilets or changing rooms. That misses the point. Single-sex spaces are not entirely or even mainly about safety: they are about privacy, dignity, autonomy, and boundaries. Women and girls are entitled to bodily privacy from men and boys. Men and boys do not become entitled to violate that privacy by a record of good behaviour, nor by declaring a trans identity; nor even by the two combined. Men and boys too are entitled to privacy, dignity, autonomy and boundaries, something White overlooks in the desire to find a justification permitting those of the male sex to enter spaces needed by those of the female sex.

In any event, schools in this situation have the most unanswerable justification imaginable: they have to keep toilets and changing room single-sex because that is the law. If they let boys into the girls’ or vice versa, they will be in breach of their obligation to provide segregated toilets and changing rooms. They will also likely be in breach of their duties to safeguard the children in their care.

Conclusion 

White’s piece for Translucent is unlikely to persuade anyone who understands the law in this area. But in the vacuum left by an absence of government guidance, such ill-informed and tendentious writing risks leading schools into serious error. 

The author is a lawyer and Chair of Trustees of a girls’ primary school.

Naomi Cunningham and Michael Foran

Speaking at a fringe meeting at the TUC this week, Jo Grady, the general secretary of the University and College Union (UCU) said (as reported in the Telegraph):

“whilst it’s clear that gender-critical beliefs are protected, the form of expression isn’t … You might have freedom of speech, but you don’t have freedom to offend … that’s one of the things that we try and educate our members about quite a lot.”

This betrays a misunderstanding of the law. The right to freedom of belief under article 9 of the ECHR  explicitly protects the manifesting as well as holding of beliefs; and the right to freedom of expression includes the right to say things that are offensive, shocking, or  heretical to current orthodoxies. Academics in particular are granted heightened protection in their expression, precisely because academic freedom necessitates the freedom to pursue truth, even when social and institutional pressure seeks to silence it. 

The legal framework

Article 9 ECHR provides: 

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance. 
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 ECHR provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has been explicit that the protection of these rights is foundational to democracy. For example, in Sahin v Turkey (2007) 44 EHRR 5, [104], the Court concluded that 

“freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.” 

A similar commitment can be found within domestic law. For example, in R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ noted that 

“A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”

This position was neatly summarised by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]: 

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”

The importance of political speech — the ability to discuss public policy, law, governance, and rights — has been particularly emphasised as necessary for democracy. In R (Prolife Alliance) v BBC [2004] 1AC 185, Lord Nicholls stressed that 

“Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts”

Similarly, the European court of Human Rights in Vajnai v Hungary [2008] ECHR 1910, has noted that there is “little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest.”

There is a wide latitude as to the manner in which such views are expressed. In De Haes and Gijsels v Belgium [1997] 25 EHRR 1, the Court observes that 

“Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community… it must be remembered that Article 10 … protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”

As Jo Grady notes, Forsater v  CGD Europe [2019] UKEAT 0105_20_1006 establishes that gender critical views are protected as philosophical beliefs for the purposes of the Equality Act. They engage both Article 9 and Article 10 ECHR and are considered to be worthy of respect within a democratic society. Because they engage these rights, their expression or manifestation is also protected, and this is so even where such expression is offensive. In R (Miller) v College of Policing [2020] EWHC 225 (Admin), Knowles J (at first instance) said:

“The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1) … in the Article 10 context, special protection is afforded to political speech and debate on questions of public interest.” 

Comment

It is possible that the confusion arises from the fact that the right to hold a belief and the right to manifest it do not attract exactly the same protection. The former is absolute; the latter is qualified. This means that, as recently discussed by the EAT in Higgs v Farmor’s School & anor [2023] EAT 89, not every expression of a protected belief is protected.

Nevertheless, there is a strong presumption against interference with the manifestation of religious or philosophical belief. The onus is on those wishing to curtail the expression of protected beliefs to establish that it is necessary to achieve one of the aims specified at article 10(2), and that the means used are proportionate. 

These questions are fact-sensitive, with few hard rules. One thing that is certain is that the law takes freedom of expression seriously, and in particular takes account of the chilling effect that any interference may have on the ability of others to exercise their rights; see R(Miller) v The College of Policing [2021] EWCA Civ 1926): 

“The concept of a chilling effect in the context of freedom of expression is an extremely important one … when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”

The legal problem is where precisely to draw the line between protected speech, and speech  so grossly offensive that interference can be  justified. That line was not crossed by Harry Miller’s “opaque, profane, or unsophisticated” tweets; it is unlikely to be crossed by academics and scholars speaking about biological sex or its importance in political or social life. Academics and those who represent them can rely on a strong presumption that  manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression. 

Conclusion 

Academic freedom in the UK (and many other parts of the world) is under threat from across the political spectrum. Instead of meeting that threat and defending academics,  many institutions have been dismayingly ready to acquiesce in or even encourage the destruction of academic freedom. In particular, a union for academics should be knowledgeable about its members’ rights, and quick to defend them when they are attacked. The unflinching pursuit of truth is the beginning and end  of academic integrity and the primary purpose of any institution seeking to represent scholars and their interests. 

Within academia, only truth is sacred. Sometimes truth offends. So be it.  

Dr Michael Foran is a Lecturer in Public Law at the University of Glasgow.

FreeBar describes itself as “a network of LGBT+ people and allies who work at and with the Bar”. It came into being in 2016, and remains small, with an annual income of less than £5,000. Its trustees are Alice Brighouse (Matrix Chambers), Caroline Harrison KC (2 Temple Gardens), Cameron Stocks (Gatehouse Chambers). Two treasurers, Conall Patton and Joyce Arnold (both of One Essex Court), manage its finances. 

The FreeBar Charter

The organisation’s flagship initiative is its “Freebar Charter”, launched in November 2020. Barristers’ chambers are invited to sign up in order to signal to the world “that they are (or are working towards becoming) an LGBT+ inclusive organisation”. 

In nearly 3 years, the Charter has attracted a total of 9 signatories. Only two of the organisation’s trustees have managed to persuade their own chambers to sign. 

The Charter comprises 11 commitments. The first calls to mind Tom Lehrer’s Folksong Army: 

“We are an LGBT+ inclusive and welcoming organisation. We welcome all people, regardless of sexual orientation or gender identity.”  

Things go rapidly downhill after that. I won’t comment on all the pledges, but a few merit attention.

No. 2 reads:

“We always challenge LGBT+ phobic language or behaviour, whether from anyone in our organisation, or directed at anyone in our organisation from anyone dealing with our organisation.“

To the casual observer, this might also seem to be in “motherhood and apple pie” territory. But the devil’s in what’s meant by “LGBT+ phobic”. We don’t find a definition anywhere on the FreeBar website. I suspect the intention is to give the impression that if you want to know the precise limits of this particular mortal sin, you are already in terrible spiritual danger. 

If the definition turns out (as such definitions often do) to include arguing that sex is real, binary, immutable and sometimes matters, this promises get barristers’ chambers into trouble with equality law; see Forstater v CGD, Higgs v Farmor’s School. 

No. 4 reads: 

We will ensure that by DATE our]/[Our] (delete as appropriate) internal policies and governing rules and procedures use only gender-neutral language, do not discriminate on LGBT+ grounds and are explicitly inclusive of those who identify as LGBT+.

A set of chambers which rewrote its maternity and parental leave policies to leave out feminine pronouns and words like “mother”, “maternity”, “breast-feeding” etc would create an unfortunate impression that it thought the erasure of women an acceptable price to pay for “trans inclusion”.

No 5 reads: 

“We have a policy on transitioning at work applicable and available to everyone in the organisation.”

A note at the bottom of the page reads “Point 5: FreeBar can provide you with an example Transitioning at Work Policy if you would like it.” I requested sight of such a policy about a year ago. FreeBar is small, and some of the delay since then has been explained, and is for good reason. Nevertheless, by now I feel driven to the conclusion that those who have drafted the policies offered in this way are feeling some reluctance to have them publicly analysed. If, for example, they advise that anyone who asserts a cross-sex identity must be allowed to use single-sex facilities for the opposite sex, that will lead chambers into acting in breach of the Workplace (Health, Safety and Welfare) Regulations 1992. 

No. 7 includes “we respect everyone’s choice of their own pronouns”.

Questions arise. Does this mean “we will reprimand and if necessary discipline anyone who declines to use others’ preferred pronouns”? Is this just cross-sex or plural pronouns on demand, or does it also apply to neo-pronouns? Does the rule apply to everyone, or just some people? If I were to declare my second person singular pronouns as “thou/thee” , would my colleagues be required to use those to address me – and do their best to conjugate verbs to match, too? Or does it only apply to preferred pronouns adopted in good faith, and would the assumption be made that I was trolling? But if the latter, how do you tell whether a man who says he’s a woman is in good faith or merely trolling? Does it depend on whether he bothers to cross-dress, wear make-up etc? 

Whether and if so in what circumstances employers and workplaces are entitled to require the use of preferred pronouns is a contentious question on which there is as yet no clear guidance in the case law. Mackereth v DWP provides some indications in the context of employees’ interactions with service-users, but whether an employer or other workplace is entitled to compel the speech of colleagues among themselves, subordinating the article 9 and 10 rights of dissenters to claims to “politeness” of their trans-identifying colleagues, remains to be seen. 

A note to point 8 suggests advertising vacancies on Stonewall’s “Proud Employers” platform. After last year’s judgment in Allison Bailey v Stonewall Equality Ltd, Garden Court Chambers et al, prudent chambers may feel some hesitation about making a public declaration of allegiance to Stonewall’s values in this way. 

No. 10 ends:

We have/we would welcome the establishment of an LGBT+ network in our organisation. 

That’s not a problem in itself, obviously. But have they thought it through? Do they realise that they are going to need to be equally welcoming to the establishment of a gender critical network, or risk unlawful discrimination on grounds of belief? Would it perhaps be better not to encourage members of a set of chambers to perform their political allegiances in the workplace at all?

Visibility page

FreeBar’s “Visibility” page profiles 44 individuals (mostly barristers but a few chambers staff and one High Court Master) from 26 different sets of chambers. It is striking that only 7 of those 26 sets are represented among the signatories to the Charter. 

Barristers read the small print

The FreeBar initiative seems to have fallen very flat. This makes me feel proud of my profession. The exhortation in the title of this blog can be repurposed as an observation: in general, barristers read the small print.