What is the government up to regarding the Supreme Court’s judgment in For Women Scotland (2)? A question which breaks down into three.
- Does the government really accept the Supreme Court’s judgment?
- If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court.
- Who is responsible for giving the instructions to the government’s lawyers?
Acceptance
On the first, the government has certainly said so, on a number of occasions. Most recently, the Prime Minister said in Prime Minister’s Questions in response to Rebecca Paul MP that “the Supreme Court ruling must be implemented in full and at all levels” (see here). A clear statement? Apparently. But it begs the question as to what the government understands the Supreme Court ruling to mean. (Misunderstanding of the applicable law and previous judgments – whether in error or deliberate – has been endemic on this topic.) The judgment itself was clear: it was accepted by all parties before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.
The government asked the EHRC to draft appropriate practical guidance, which it has done. There is a current issue about why the responsible Minister has not laid that draft Code of Practice before Parliament, which has been discussed by LegalFeminist here. But regardless of what that guidance says, the law is clear (guidance cannot change it) and, as the Prime Minister (and other Ministers) have said since April 16, the law (in place for 15 years, it’s worth remembering) must be implemented, as some organisations have already done (including the Labour party itself which has changed its internal rules relating to female only posts to limit these to women, excluding men who choose to identify as women).
Argument
The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. This is not unusual. It is there to provide clarification on the government’s position and to assist the court.
But that is not what leading counsel for the government is doing. The KC is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to the government’s counsel that the argument is “trying to rewrite FWS”. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. These are not the arguments of a neutral party. They are arguments which the GLP could and are making.
Why is the government doing so? What it is doing is inconsistent with what government Ministers have told Parliament. Who is being misled? Parliament? Or the courts? Both are serious matters.
Responsibility
This brings us to the third question. Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? And why? Formally, it is the Minister for Women and Equalities (Ms Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment.
Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way? Or is it what might be termed the permafrost layer of management (whether in the civil service or the legal function) who are determined to frustrate the judgment or make it unclear or confusing, either because of their own personal position or ideological views or simply because they do not like it? None of these considerations should play any part in the advice to Ministers or indeed in Ministers’ actions. Are they doing so here?
This topic has been bedevilled by a continuing serious concern: the extent to which government (and other public bodies) have allowed a gross conflict of interest to arise, through their embrace of Stonewall “advice” (Stonewall are not lawyers) and membership of its schemes, and to continue, to the detriment of civil service duties of impartiality and professionalism. These conflicts of interest are a serious breach of the Nolan Principles and have already led to one judgment against the police in Lindsay Smith v The Chief Constable of Northumbria Police in July this year for breaches of its duty of impartiality. LegalFeminist has commented here on the serious conflicts of interest which arise from association with one issue lobby groups such as Stonewall.
Now we have government Ministers saying one thing to Parliament and government lawyers saying something inconsistent to the courts. This is unacceptable. Ministers need to clarify this – and without delay. The public and the courts deserve nothing less.
Fīat iūstitia ruat cælum is a Latin legal phrase, meaning “Let justice be done though the heavens fall.” The maxim signifies the belief that justice must be realized regardless of consequences.
I am sure legal minds are very familiar with this phrase I am familiar because many years ago I watched an old 1948 movie “The Wilmslow Boy”.
It seems to me the time is right to apply this familiar term to girls also remembering the guiding principles of equality.
I can’t think of an interpretation of the Govt position that is anything other than DEEPLY unsatisfactory. It’s clearly an attempt to relitigate FWS. So it must be presumed that Govt lawyers don’t like the SC judgement are having free reign to try to undermine it in some way. I doubt Bridget Phillipson is directly involved. But someone pretty senior will have signed off on it. I didn’t hear the full arguments but as far as I can see, there wasn’t even the fig leaf of an attempt to distinguish it.
Legislation and Building Regulations are based upon health, safety and welfare. It was inconceivable at the time of their implementation, that barristers would now be arguing people had rights to use the toilets for the opposite sex.
Single sex toilets and mixed sex toilets are not the same designs. If you go for a ‘case by case’ basis, you are left with only 2 options.
Government now needs to make a choice out of 3:
1. Both sexes are allowed in a toilet cubicle or toilet room, so the design of each has to be rebuilt to a mixed sex design. This means scrapping single sex provision, variations of which are most of the toilet provision in the country. Designs C and D in Document T (2024) are no more. This is huge in economic terms. You have to have separate rooms, fully private and sound resistant, with sinks, mirrors, and a hand drying system inside. There may be less provision overall due to that takes longer in occupant turnover. On the plus side, women exclude from these designs, so men won’t have to wait as long.
2. Both sexes are allowed in all toilets but to keep provision as it is and ‘just’ change Health and Safety legislation and Building Regulation on toilets. Risk assessments would have to be ignored as currently mixed sex designs are completely private to prevent voyeurism. What to do about urinals? Parts of the Sexual Offences Act (2003) would also need to be looked at carefully as they may be unworkable in their current form.
3. Keep single sex provision the main provision as in Document T. Even though I have proof of Stonewall skewing the analysis and consultation, this was still the verdict reached in 2024. Although Document T now doesn’t specifically mention door gaps, HSE confirms they can have them. There’s a long story involving transactivists about that. HSE confirms Universal designs can not have door gaps.
Why abolish safer single sex designs which can have door gaps for:
health (ventilation & easier cleaning, so less pathogens)
safety (supervision in case of medical emergencies and assaults)
prevention of misuse (inc vandalism, sex and drugs)?
Indeed at the time of The Workplace (Health, Safety and Welfare) Regulations 1992, the relevant Building Regulations for toilets BS6465 (1984 version), were stating that ‘….where a range of WCs is provided, each in a separate cubicle within a single room, e.g. in schools, offices, factories, public buildings and public conveniences, it simplifies ventilation, cleaning and, to some extent, supervision and prevention of wilful misuse, if the cubicle walls terminate above the floor as well as below the ceiling. These advantages are gained only at the expense of a certain degree of privacy. Where cubicles are used, the whole room in which they are situated may be regarded as a single unit for the purposes of ventilation.
Where partition walls and doors of WC cubicles are kept clear of the floor, the clearance should be not less than 100 mm and not more than 150 mm. Partitions and doors that terminate below ceiling level should be not less than 2 m in height from the floor.’
Based on my research, there’s a case that Option 1 is detrimental to sex (assaults on women), disabilities (epilepsy, diabetes, heart conditions due to collapse risks esp. cardiac arrest where 11% happen on the toilet), religion (exclude those who do not use mixed sex facilities), age (frailty and collapse eg stroke risk in elderly; assaults on children) and pregnancy (risks of miscarriage/collapse). The demographic it is least dangerous for is a healthy man.
Option 2 is most favoured by men that want to use the women’s toilets. They are less likely to prefer mixed sex design.
Single sex designs save lives and prevent assaults. The Government now needs to chose against this if they decide all designs go mixed sexed.
Legally you are of course right.
Politically, I don’t believe there is a Government position. There is a Kier Starmer position, a Bridget Phillipson position, and a Wes Streeting position.
This is the Bridget Phillipson position – try and find some meaningless and unworkable political compromise to give ‘something’ to the activists and keep in with the soft left who look like they might succeed Starmer in the spring after the May elections.
I hope this comes up in PMQs. But does anyone really think Starmer has the authority at the moment to – to coin a phrase – law down the law? I think this will run and run until at least the next election.
Keep up the good work btw. You are invaluable.