How to lose well ….. and how not to.

No-one likes losing a court case. But it happens – even to the very best lawyers. How to respond in public (assuming your case is one the public is interested in)?

Until a judgment has been properly analysed and understood, a brief “We are disappointed. We will review it carefully and decide next steps.” is usually both sufficient and, more importantly, wise. In cases of obvious public interest, it may be clear in advance that the losing party is likely to appeal and saying so is unlikely to create any embarrassing hostages to fortune. But the one thing that a losing party should never do is issue misleading statements about what the judgment says. Doing so can create legal jeopardy if relied on by those who do not read the actual judgments themselves. It also shows disrespect for the court. Surely such misleading never happens? If only.

There have been recent examples of all three types of responses in recent weeks: two of them on the same day.

Sex Matters’ challenge to the Corporation of London’s policy of allowing trans-identifying men to use the women-only pond on Hampstead Heath. Sex Matters lost on a number of procedural grounds so the substance of the Corporation’s policy was not considered by the court because the request for a judicial review simply did not reach the procedural threshold. Sex Matters’ response was short and to the point: it expressed its disappointment and noted the basis of the decision.

The judicial review of the government’s decision to proscribe Palestine Action as a terrorist group, which the government has lost. The government has stated that it will appeal the judgment and, in light of that, the court has said that the government’s proscription remains in force until its appeal has been heard. It was important for the court to say this clearly, notwithstanding its decision that the government had not properly followed its own policy, because supporting a banned terrorist organisation is a criminal offence and people should not be misled into acting on the mistaken belief that it is now lawful to do so. The court is maintaining the status quo until a higher court determines the appeal.

The Good Law Project’s (“GLP”) response to its challenge – and that of three anonymous parties – to the EHRC’s interim guidance following the Supreme Court’s judgment in the For Women Scotland (“FWS”) case in April 2025. The court rejected the challenge on multiple grounds: GLP itself had no standing to bring the case, though the three other parties did. The court ruled that the EHRC’s interim guidance was lawful, in the court’s words “an accurate statement of the law without misstatement or material omission.” It was in accordance with the Supreme Court’s FWS judgment, which also applied to Health and Safety regulations governing employers and it did not breach the parties’ ECHR rights. (A good analysis of the judgment can be found here.)

Briefly, the effect of the judgment is that:

employers must provide employees with single-sex facilities;
when service providers provide single-sex facilities, these must be limited to members of that sex only i.e. trans people identifying as a gender different to their sex are not entitled to access them;
both employers and service providers can provide mixed sex facilities and/or single use lockable rooms as well; and
trans people must not be left without any facilities at all.

What has GLP’s response been? It has issued a press release which does not accurately reflect what the judgment says. See here. This risks misleading the public, service providers and employers — unless they take the trouble to get their own expert legal advice. Worse: it risks misleading trans people themselves. They are being told by a body which purports to fight for their “rights” that the court has ruled that they have rights which in fact the court has expressly said they do not have. Telling those who rely on you, or may only choose to read what you say, something which is not true, which is — in fact — the opposite of the truth, is unkind, an epithet usually hurled at every opportunity and with no justification at those asking for the law to be upheld.

It is not the first time GLP has issued incorrect statements about cases it has lost. The most recent example was in its responses to the judgment in the Mermaids and The Charity Commission/LGB Alliance case. Mermaids sought to have the LGB Alliance’s charitable status removed. In order to succeed it needed to establish that it met the test to challenge the Charity Commission’s decision in the First Tier Tribunal and, if successful, show that the LGB Alliance’s purposes were not charitable. Mermaids failed to establish that its legal rights were in any sense affected by the decision to register LGB Alliance as a charity. It therefore failed on the first point. (So no ruling was made on the second point.)

The issue of standing to bring a judicial review may appear technical but is, in reality, fundamental, as was clear in the Sex Matters case about the Women’s Pond. In that case the court held that it was for a person affected by the Corporation of London’s policy to take the appropriate legal action – not Sex Matters.

The response of Mermaids and its lawyers, GLP, to losing its case against the Charity Commission was to:

Ignore the reasons why they lost;
Airily dismiss this as merely “technical” (which pretty much describes all legal judgments);
Wrongly claim that they lost because the law was “so complex” when in reality it was because they were unable to meet the legal test on the facts; and
Focus on some minor obiter dicta criticisms of LGB Alliance.

The absurd culmination of this “Nelsonian” approach to the judgment has been the claim that, if they had only won the standing point, they would have won the case. “If I had won I would not have lost” is true but a bizarre response to a case which you have lost, especially since there appeared to be no engagement with the reasons why and what this meant for themselves and others.

In the latest case, against the ECHR, the GLP has gone further. It has now written to the Minister for Women and Equalities demanding that she withdraw the draft Code of Practice prepared by the ECHR to provide guidance to organisations following the Supreme Court judgment in the FWS case and making various other demands, based on what appears to be its incorrect understanding of the judgment. Why this demand is unjustified is discussed here.

This has been compounded by three MPs issuing statements repeating, in very similar terms, the incorrect description of what the judgment says. MPs are legislators and the very minimum voters are entitled to expect of them is that they read the judgment and understand the actual law, rather than repeating spin from disappointed losing parties. Disappointment at an outcome may be understandable; but it is no excuse for laziness and putting out incorrect information about the law to voters.

Does this matter?

Yes.

There is something worrying — and dangerous — about misconstruction of a court judgment. As well as a finding on the issues before it, judgments are a signal both to the parties involved and to others to reflect on what it says and, as necessary, change their behaviour. In some cases, they may be a clear signal or instruction to government or public bodies to act. Ignoring and/or mischaracterising what a judgment says – whether because you don’t like it or disagree with it or to save face or because you don’t understand it – is fundamentally disrespectful of the court and the rule of law. There is also a risk of personal attacks on the judges in a manner which goes beyond good faith criticism of the legal reasoning. This is not a theoretical risk. It happened to the judges in the Miller case on Article 50 and Brexit in November 2016 with one newspaper calling them “Enemies of the People“.

Those doing it are essentially saying that they know the law better than the court. They are sending out two messages: you can ignore laws if you feel like it and deprive groups you don’t like or don’t care about of their rights; and, second, accuracy about what the law says does not matter. One day this sort of conduct could be used against groups they do care about, and they will then have nowhere to hide and no basis to object, as so well expressed here (“And when the last law was down, and the Devil turned round on you, where would you hide,…. the laws all being flat?”) It is also all too tempting for lay people to ignore this on the basis that this issue is not one that bothers you. But if MPs and lawyers behave like this on this issue, one day they might do so on something you do care about.

Issuing misleading or inaccurate statements about the law might – (just about, if feeling very generous indeed) – be forgivable in non-lawyers. It most certainly is not when done by lawyers or legislators. It is a Trumpian approach, both to facts and the rule of law. It is a dangerous development in what is meant to be a democratic, pluralist country based on the rule of law. Neither legislators nor lawyers should engage in or be complicit in such conduct.

Men in women’s facilities at work – what are your rights?

This problem remains widespread. Many employers — at a guess the great majority — still think that if a man says he’s a woman, it’s against the law to refuse to let him use the women’s toilets, changing rooms etc.

They’re wrong. If a man says he’s a woman, he has the protected characteristic of gender reassignment, and he’s entitled not to suffer discrimination or harassment because of that. But if he’s told he’s not allowed to use women’s facilities, that’s not because of his gender reassignment: it’s because of his sex. If employers are allowed to provide single-sex facilities at all (and I’m not aware of anyone ever having suggested they’re not), they’re allowed to exclude all men from them, including any men who say they are women. There is no plausible basis on which such a man could argue that he had suffered unlawful discrimination by being excluded from women-only facilities.

But if you’re a woman and you find a man using supposedly female-only facilities at work, it doesn’t help you hugely to know that your employer is wrong in its belief that it has to let him do so. What can you do?

Your legal rights

As an employee, you have a right not to suffer indirect discrimination because of your sex, or harassment related to your sex. In letting a man (or men) use the women’s facilities in your workplace, your employer is almost certainly subjecting you to both of those kinds of legal wrong.

How can you persuade your employer to respect your rights?

This should be what your union is for, but I can hear your hollow laugh from here. Maybe somewhere out there there is a trade union that thinks women’s rights to everyday privacy and dignity (not to mention safety) are as important as the preference of men who think they are women not to be faced with the reality that there are other people who don’t agree, and is vigorously defending its female members rights. I have yet to hear of this happening.

Many women who reject gender identity theory have either left their unions in disgust at their attitudes to women’s rights, or decided not to bother joining one. Some have joined the Free Speech Union instead, which has helped a number of employees with cases of this nature already; David Toshack’s case is the most recent example), and is definitely worth considering.

All the same: if you are a member of a trade union, this is what it is for. So I’m inclined to say you should proceed on the assumption that it will do its job properly, and approach local officials for help. You may get lucky.

If you’re not a member of a union or the FSU, or your union won’t help, you’ll be on your own with your employer’s grievance process and ultimately, if you feel strongly enough, a complaint to an employment tribunal. If you can get a group of colleagues together to present grievance together, so much the better.

Think about your risk appetite

Before you take any of those steps, think hard about what you’re prepared (and can afford) to risk. Being known to dissent from gender identity theory (or to be “gender critical”) is enough in itself to attract the attention of bullies in many workplaces. Taking positive steps to assert your right to female-only spaces at work may make you unpopular with colleagues and/or managers, and if you object even in the politest possible terms to your employer’s policies, you may be marked out as a trouble-maker. Even if your initial plan is to raise a grievance but take matters no further if the grievance fails, things can escalate. If you end up being bullied because of your grievance, or because you’ve “outed” yourself as “gender-critical”, you may find yourself locked into a dispute with your employer in which you are effectively forced into litigation as the only effective way of defending yourself.

Litigation itself is always a pretty nuclear option. It won’t endear you to your employer, and it may well damage your prospects of promotion, or passing your probationary period, or a renewal of your fixed-term contract, or surviving the next redundancy exercise. Punishing you in those kinds of ways for enforcing your rights in the employment tribunal is also a legal wrong, of course, but proving that that is what has happened to you is unlikely to be straightforward. Like most employment lawyers, I routinely remind my clients that for most people, most of the time, a job is a better thing to have than even the most cast-iron employment tribunal claim; and few employment tribunal claims are cast-iron.

I hate saying this, because what it boils down to is that sometimes, for self-preservation, people have to let bullies win. But if losing your job would spell financial disaster for you, you may have little real choice but to leave these battles for others to fight.

Raise a grievance

If you’ve thought through the risks and you’re prepared to take them, read your employer’s grievance process and follow it. Document everything. If you have a meeting or a call with someone, drop them a polite email straight after setting out your understanding of what passed between you. Take notes during calls or meetings and file them away. Sex Matters has good advice and helpful precedents and factsheets here.

However furious you feel, keep all your communications calm and as concise as possible. Never, ever hit send on an email while your pulse rate is still raised.

I’m going to labour this point, because the combination of sanctimoniousness and gas-lighting with which women who raise these matters are often met is infuriating, so unless you’re an actual saint, you are likely to get very cross. At the same time, losing your temper may give your employer or your bullies the excuse to mistreat you that they most want. So try to make a game of combining persistence with a reasonable, unruffleable manner. It’s easier to stay calm in the face of provocation if you’ve seen the provocation coming and planned for it.

But also, hold your nerve. The time to decide the level of your risk appetite is before you take the first step. If you have decided to tackle this with your employer, do so calmly and politely, but not half-heartedly or apologetically. Bullies feed on fear, so even if you’re quaking inside, try not to let it show. There is nothing even arguably unreasonable about standing on your right not to find men in women-only spaces.

In particular, make a decision in advance about what you will do if you actually encounter a man in supposedly women-only facilities. It seems to me there are three options:

Challenge him.
Leave.
Pretend not to notice.

Each of these options has its risks and drawbacks. If you decide to challenge the intruder, do so politely and calmly. Don’t be drawn into an argument, and don’t elaborate on the reasons why you object to his presence: just tell him that you don’t think he should be using the women’s facilities, because he’s not a woman. Even so, he may well complain that you have harassed him, so be ready for that. Write down your own account of the encounter as soon as you can.

Even if you just leave on finding a male intruder in a women-only space, there’s a risk that he will complain that by doing so, you have made it obvious that you don’t see him as a woman, and thereby harassed him. So if this is your choice, leave without any outward display of irritation or affront; and again, make a note of the encounter as soon as you can.

In either case, if you are accused of harassing a male colleague for objecting to his presence in supposedly women-only facilities, that will be various kinds of legal wrong, but most obviously discrimination because of your protected sex realist/gender-critical belief. The main point of keeping your cool is to deprive your employer of what I’ve taken to calling the Bananarama defence: “It’s not what you said, it’s the way that you said it.”

Pretending not to notice is the safest option from the point of view of accusations of harassment, but it has the down-side that if you end up in an employment tribunal, it may be said that the fact that you continued to use the facilities meant you didn’t really mind. So make notes of any encounter, including how it made you feel and why you decided to keep your head down.

Complain to an employment tribunal

If your grievance doesn’t have the result that your male colleagues are told to stop using the women’s facilities, the obvious next step is an employment tribunal claim. There are strict time limits for these. Before you’re allowed to bring an employment tribunal claim, you have to go through a process called “early conciliation” with ACAS), and you must start that by notifying ACAS of your complaint within 3 months less one day of the act complained of. If you’re complaining about a policy that is still in place and still having consequences for you, this is unlikely to give you any difficulty; but if for any reason it stops having practical consequences for you, make sure you notify ACAS within 3 months of the last time it did. ACAS will send you a certificate once early conciliation is finished, and then you can present your claim to the employment.

How can I afford to litigate?

Legal fees mount up fast. Unless you’re on the kind of income that means you can buy a flash sports car without breaking sweat, you can’t afford to instruct lawyers to act for you in an employment tribunal claim out of your own resources. I can think of the following options, some of which you can try at different times in the same case, or in combination with each other:

Trade union assistance: if you’re lucky enough to be a member of a trade union that takes its female members’ rights seriously, they may provide you with legal advice and representation.
If you’re a member of the Free Speech Union, they may back your case.
You may have legal expenses insurance tucked away in your household insurance policy, or your car insurance, or insurance attached to a credit card, etc, so read the small print of all these things.
Apply to the JK Rowling Women’s Fund. This is a wonderfully generous and practical initiative, but it’s inundated with requests. So do apply, but don’t assume you’ll get help from it in time to start a claim, and don’t miss deadlines while you are waiting to hear.
Run the case yourself. You don’t have to pay a fee to bring a claim in the employment tribunal, and tribunals are supposed to be informal and accessible to non-lawyers. The truth is, they’re pretty daunting for non-lawyers, so if this turns out to be your only option for enforcing your rights, do think hard about whether you can cope with the work and the stress. If you’re thinking seriously about this option, I’d suggest getting hold of a copy of ET Claims: tactics and precedents: the 4th edition was published in 2013, so it’s getting a bit long in the tooth now, but it’s mostly not the kind of material that goes out of date very fast. (Authors’ royalties go to the excellent Free Representation Unit.)