Bailey v Stonewall

The decision is out in Allison Bailey’s appeal against the decision of the Employment Tribunal that Stonewall did not contravene s.111 Equality Act 2010. The Employment Appeal Tribunal has upheld the decision. 

The ET is the first instance tribunal. The EAT is the appellate tribunal which heard the appeal from the ET. Any onward appeal must go to the Court of Appeal – and can only be heard if permission is granted and if it satisfies the “second appeal test” of establishing an important principle or there is some other good reason for it to be heard. 

Allison Bailey was a barrister at Garden Court Chambers. A seasoned campaigner for lesbian and gay rights, she found herself in profound disagreement with the proposition then being advanced by Stonewall that some men were ‘truly’ lesbians, including those who had no intention of making a physical transition, if they said that they were. 

Both Ms Bailey and Stonewall made known their own views on this topic on Twitter. As a result of Ms Bailey’s tweets, Stonewall’s then Head of Trans Inclusion Kirrin Medcalf sent a complaint to Garden Court Chambers saying that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.” 

The detriments to which Garden Court Chambers then subjected Ms Bailey on the basis of her protected belief are set out in the ET decision and were found proved by the ET, which found that Garden Court had unlawfully discriminated against her, including by upholding Medcalf’s complaint against her. However, the ET did not find that Stonewall, through Kirrin Medcalf, had “induced” or “caused” that discrimination. 

She appealed to the EAT. 

Section 111 Equality Act 2010 prohibits anyone from instructing, causing or inducing another to discrimination against another:

111 Instructing, causing or inducing contraventions
(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

… 

The EAT had to consider what these meant, which is not something previously attempted by a court. Bourne J held that 

  1. In section 111(1), “It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.” [101]
  2. the word “induce” in section 111(3) “is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.” [105]  He also held that “it is in the nature of an inducement that the inducer intends the inducee to do what they are being induced to do.” [106] and so “inducing” in s.111(3) must be intentional. 

In other words, both instruction and inducement are intentional by their very nature. 

That left s.111(2) and “cause.” To this the judge applied a two-stage test: first, was the discrimination ‘caused’ by the defendant, applying a “but for” test – would it have happened but for the actions of the defendant? Then secondly, is it “fair, just and reasonable” to hold them liable? 

This came from a House of Lords authority, Kuwait Airways Corp v Iraqi Airways Co & Anor [2002] UKHL 19. This is a case which has provided significant authority in respect of the tort of conversion, litigation privilege and the iniquity exception, but it seems that this is the first time it has been cited in respect of discrimination. It has been cited in another EAT case, also decided by Bourne J, but in respect of litigation privilege rather than discrimination. 

The EAT held in this case that “by analogy with the approach to loss in Kuwait Airways, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the prohibited act on a “but for” basis and, second, that the causal connection is such that person A ought to be held liable. Borrowing Lord Nicholls’ phrase, those last words mean that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable.” 

It went on to hold that “For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.” The blame, ruled the EAT, was squarely with Garden Court Chambers for choosing to respond to the complaint in a discriminatory way. 

The application of a two-stage test to s.111(2) is an interesting one. It is very unclear as to whether this was actually argued by either party. It also seems at first blush that it may impose a more strenuous threshold than that set out in the plain words of the statute. However, it does undeniably bring the intention / effect into alignment with s.111(1) and s.111(3) and to that extent is an elegant solution. 

This is the first time that the courts have grappled with the definitions of s.111 and as an EAT judgment, this is binding until and unless overturned on appeal, or overruled by a higher court. 

Finally, a note which may sound into future cases. Paragraph 101 of the judgment provides that 

“section 111(1) requires that person A must not “instruct” person B to do in relation to person C anything which contravenes the relevant provisions. I agree with Mr Cooper that the question of person A’s mental state is subsumed into the nature of the prohibited act. It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction. So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

Put simply, the only intention of the person instructing need be that the person instructed carry out the instruction. If one body instructs another to implement policies that are indirectly discriminatory, the instructing body may be held liable.

This is likely not the last we have seen of s.111.

Women’s Consent Matters

The Liberal Democrats’ manifesto (published today) promises to abolish the spousal veto in the Gender Recognition Act 2004 (“GRA”) (see Section 19). The spousal veto is a phrase which has been widely used by politicians wishing to expand LGBT rights. But does such a veto actually exist? Let’s look at what the GRA actually says and not what politicians think it says. We will focus on marriages and the position of women married to men seeking a Gender Recognition Certificate (“GRC”).

The relevant provisions are these:-

  • An application for a GRC is made under S.1(1). Anyone doing so must under S.1(6) make a statutory declaration as to whether or not they are married. 
  • If they are married they also need to state whether it’s a marriage under the laws of England and Wales, Scotland, NI or a country outside the UK – S.1(6)(A).
  • Under S.1(6B), the married applicant must also include a statutory declaration by their spouse that they consent to the marriage continuing after the issue of a full GRC (a statutory declaration of consent) or a declaration that they have not made such a declaration. In short, the panel determining the application needs to be told the spouse’s view on the continuation of the marriage given that its fundamental basis will change on the grant of a GRC. A woman who married a man will find herself, after a GRC is issued, married to a legal woman i.e. in a same sex marriage. 
  • If the spouse has given their consent, they will be given notice by the Panel that an application for a GRC has been made – S.1(6D).
  • There are equivalent provisions for marriages in other parts of the UK, forced marriages and for civil partnerships.

What happens if a spouse does not consent

  • This is covered in Section 4 – Successful Applications. (Note the heading.)
  • Under S.4(3) the applicant gets an interim gender recognition certificate. 
  • An interim GRC will be turned into a full GRC if, within 6 months, the wife consents to the marriage continuing after the issue of a full GRC – S.4A(2)(d) i.e. the woman changes her mind.

So there is no veto. What there is instead is a pause to allow the wife to decide what to do about her marriage. During that pause the applicant has an interim GRC. 

What is the point of that six month pause?

Well, this should be obvious but let’s spell it out. It is to allow the wife to decide what to do about a marriage which has fundamentally changed.  Instead of being married to a man, she will find herself married to a man who says he is a woman and seeks to change his birth certificate to say so. It is not simply that she will be married to a woman in the future. She is being told that she has always been married to a woman.

– She can either decide to consent. 

– Or she can apply for an annulment of the marriage on the grounds that an interim GRC has been issued. Once that nullity of marriage order has been made, the court must issue a full GRC – S.5(1)(a). In short, the interim GRC starts the process of annulling the marriage to allow the final GRC to be issued.

– Or she can apply for an annulment of the marriage on other grounds and once that happens a full GRC is granted – S.5(2) – (7). 

Alternatively, a spouse can seek a divorce after the interim GRC has been granted.

Why does the pause matter?

Two main reasons:

  1. A divorce is not the same in law as an annulment and it can have consequences in other areas which can lead to prejudicial effects for the woman. One obvious area is for religious women. A divorce may prevent them from partaking fully in religious life and practices. An annulment through the religious courts can take a long time. Why should a woman be denied the benefits of something which matters to her when there is an alternative – annulment, provided for by the Act, triggered by the steps taken by her husband and which, crucially, does not deny him the GRC he is seeking? Denial of this to religious women may also potentially constitute discrimination on the grounds of religion. 

Even if a woman is not religious, she is entitled to some time and space to determine her future, whether she wants to stay in the marriage, what her husband’s decision to seek a GRC means for her, any children, the wider family, her life up until now and what she does next. This is the very minimum that a decent society should afford a woman facing such a significant change. Should this really need saying in 2024?

The GRA has provided an elegant solution which grants both an interim GRC, a means for the man to get his full GRC and autonomy to the woman to decide whether or not to continue in her marriage. 

It has been described as “awful” by one politician (Jess Phillips MP in 2020). This is a curiously hyperbolic description for a solution which seeks to balance the rights of both parties to a marriage.

What is the mischief which this change is seeking to address? No explanation is given – other than the lie that it is a “veto”. (See also Is this really necessary, Minister? – (legalfeminist.org.uk))

  1. It recognises that women married to men wishing to change gender legally should consent to a fundamental change in their marriage. Women’s consent matters. We should not have to say this or argue for this in 2024. A woman should not be forced to stay in a marriage against her will. She should not be forced into a same sex marriage against her will. She should not be forced to seek a divorce against her will as opposed to an annulment. 

It is troubling that in 2024 politicians should pay so little regard to the importance of women’s consent. What does it say about their attitude to women’s consent to matters affecting them? That “No does not mean No”? That a woman’s consent does not matter? That is an optional extra? That it comes second to the demands of men? And if women’s consent does not matter in a marriage, on what basis do such politicians argue that it should matter in other situations? Or should we worry that having chipped away at consent in this situation, it might be chipped away in others if men want something which that consent might deny them?

The Forced Marriage (Civil Protection) Act was passed in 2007 to prevent girls and young women being forced into marriage. The GRA provides a means whereby a woman is not forced to stay in a marriage. Rape in marriage was made unlawful in 1992 by the then House of Lords in R v R. The court rejected the idea of irrevocable consent through marriage, saying that it was unacceptable in modern times. It stated that each partner in a marriage should be seen as equal. Those principles – that there is no irrevocable consent and that partners in a marriage are equal – should not now be jettisoned merely to suit the wishes of one male partner wishing to make a fundamental change to his legal identity and the marriage he contracted. 

To call the provisions described above a spousal veto is a bad faith description. 

  • It is misleading about what the law actually says. 
  • It seeks to apportion blame unjustifiably on the woman.
  • It disguises the removal of her autonomy in a matter which fundamentally affects her life. 

What politicians like to call a spousal veto is in reality a spousal exit clause. It carefully balances the rights of equal partners in a marriage. There is no basis for wilfully misdescribing it nor removing it. 

What Does The Following Tell Us?

1. The Angiolini Report on how Wayne Couzens became – and remained – a police officer, despite numerous reports of criminal behaviour & other red flags, has been published – https://iipcv-prod.s3.eu-west-2.amazonaws.com/E02740018_Angiolini-Inquiry.pdf

There is much of interest in its 316 pages, not least the following:  Couzens had a long history of sexual offending, “a predilection for extreme pornography and a vile sexualised expression of his sense of humour”. Despite this and many opportunities to investigate him, no action was taken and the Metropolitan Police admitted in 2022 that faced with a similar candidate they would have made the same hiring decision.

The Foreword states: “…wider debates have raged about public trust and confidence in the police and women’s safety in public places. Neither of these problems have been resolved. In fact, public trust and confidence in policing has deteriorated further. It also remains the case that women in public spaces are at risk from those men who choose to predate upon them.” (emphasis added)

The Report hopes that those in authority in all police forces (not just the Met) will read the Report.

2. The issues around the hiring and vetting of police officers do not just relate to exceptionally awful cases such as David Carrick and Wayne Couzens. See, for instance, Jeff Mitchell: a police officer convicted of kidnap, 10 counts of rape and 3 counts of rape of a child under 13 –  https://www.hamhigh.co.uk/news/24134622.met-police-officer-convicted-kidnap-rape-rape-child/. Like Couzens there was an earlier opportunity to catch him, which was missed. These are not isolated rare cases. Nor are they limited to the Met.

3. The Angiolini Report comes 11 months after the Casey Report into the Met, also commissioned after the Everard murder. It found that the Met had failed and was failing women, among many other serious criticisms. One will suffice: “The Met’s VAWG strategy rings hollow since its claim to be prioritising ‘serious violence’ has really not included the crimes that most affect women and girls. In practice, this has meant it has not been taken as seriously in terms of resourcing and prioritisation.”

4. Earlier last month there was the HMIC Report on the Met’s handling of child sexual exploitation, described as ineffective and leaving children – overwhelmingly girls – vulnerable to sexual exploitation. This was not the first such report. In 2016 there had been a report on the same topic, described as “the most severely critical that HMIC has published about any force, on any subject, ever.” Despite that, in 2023 Casey described its handling of such cases as having “major inadequacies”. The position has not improved a year later. https://hmicfrs.justiceinspectorates.gov.uk/news/news-feed/metropolitan-police-leaving-vulnerable-children-at-risk-of-exploitation/.

5. Yesterday in Parliament the debate for International Women’s Day was brought forward because of next week’s Budget. Jess Phillips MP read out the names of the 98 women murdered in the UK by a man in 2023. Their names are collected by the Femicide Census: on average since the end of 2009, 140 women have been killed by men every year. That’s an average of two women dead at the hands of a man, every 5 days. Most occur in a domestic setting. 

So it’s not just “public spaces” then.

6. Staffordshire Police have done some “hate crime” training in which they were told that “Women who take measures to protect themselves against unfamiliar men are subject to flawed unconscious bias and, therefore, similar to racists.”

Memo to Staffs Police: please read the Angiolini Report. Teaching the police this puts women and girls at risk and puts the police on the side of those who “choose to predate on them.”

7. The Angiolini Report makes a number of recommendations, some of them relating to how non-contact sexual offences, such as indecent exposure, should be taken seriously by the police and the criminal justice system. It says that: “Ministers should launch a public campaign to raise awareness about the criminality of any type of indecent exposure.” 

8. Diana Johnson MP raised in Parliament yesterday the case of her constituent, Libby Squire, murdered by a man with a history of such offending. She was interviewed by the Today programme last March (after Couzens was convicted on three counts of indecent exposure), as was Wera Hobhouse MP, who had successfully piloted through Parliament a Bill banning upskirting. 3 women who had been the victims of indecent exposure were also interviewed. (1)

The three women all said their priority was to get away to somewhere safe. This is not an option available to women in prisons housing male prisoners claiming a female gender, something the Scottish Prison Service might like to consider as it implements a policy which allows men identifying as women to be housed in female only jails in certain circumstances. Will it take the Angiolini Report into account in making its decisions?

9. In that interview Diana Johnson said “the male body can be used to intimidate, as an act of violence against women and girls”. Wera Hobhouse wanted a complete culture change: “The traumatising effect that any of these offences have on women has been completely underestimated…. It’s a proper offence. It leads to ultimately the feeling in women that they’re very vulnerable, that they’re not being listened to,… that what they feel is a proper attack on them, their freedom, their liberty, their way of life is not seen as such.”

Dare one hope that there might be some joined up thinking – not just by Ministers or the police or MPs but by all organisations – about the consequences of policies or actions enabling men to have access to women’s spaces?

10. Abuse of women MPs has become worse and is driving women away from Parliament. https://www.thetimes.co.uk/article/misogyny-in-westminster-is-driving-women-out-of-politics-mps-warn-q0wf9b96q

“The irony is that the more women you get, the more it triggers some men who whilst they can blot out of their ears a couple of women, somehow it feels like an assault on them to actually have to listen to a number of women in authority talking confidently, and they then do a backlash. So really it’s part of fighting back against the backlash that comes when you make progress …” 

Not just In Westminster.

11. Last month we also learnt why it had taken the Scottish authorities so long to arrest Iain Packer, the murderer of Emma Caldwell. They had ignored numerous reports made by other women who had been subjected to attacks by him.

It’s not just women MPs who are not listened to.

12. Thames Valley Police say that the law requires them to record the crimes committed by Scarlet Blake, a man who claims to have a female gender but who does not have a GRC – the murder of a man and the killing and dissection of a cat – as crimes committed by a woman. Scarlet Blake has been detained in a man’s prison. The Thames Valley Police Commissioner has cited Annex L to Code C of the Police and Criminal Evidence Act 1984 as requiring this. But this Annex is headed “Establishing gender of persons for the purpose of searching and certain other procedures”. It does not require what the police say it requires. In law Scarlet Blake is a man. See here for a helpful analysis of the effect of incorrect recording of the offenders’ sex on crime statistics.

13. In the by-election in Rochdale (a town usually in the news either for grooming gangs or because of the personal misconduct of its MPs), the winner is George Galloway, a man who said that you don’t need consent for every “insertion” (his words) – https://www.bbc.co.uk/news/uk-politics-19323783 – because a lack of consent is merely bad sexual etiquette not rape. This was criticised by the Charity Rape Crisis: “Sex without consent is rape. Mr Galloway’s description of such sexual violence as ‘really bad manners’ is offensive and deeply concerning.

Perhaps these are just coincidences. Or one of those “moral panics” or “culture wars” used to dismiss those – usually women – raising such concerns. Or maybe Occam’s razor applies: women and girls don’t matter.

(1) A detailed analysis of that interview can be found here.

The Worst Can and Does Happen

A post by Cyclefree and Audrey Ludwig

It was LBJ who said: “You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.“

Wise advice. It should be heeded by those proposing new laws or policies and airily dismissing any concerns about the misuse of such laws, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended.

Let’s take some recent examples much in the news lately and see why that might be so:

– The removal of S.69 of the Police and Criminal Evidence Act 1984 which meant that such computer evidence was deemed admissible and true, unless the person challenging it could prove otherwise. This change enabled the prosecutions at the heart of the Post Office Horizon scandals.

– The proposed Scottish government ban on conversion therapy, currently out for consultation. This will create new criminal offences which could criminalise parents concerned about gender-questioning children and seeking the appropriate way to manage the situation.

Will such laws be abused or is this an unnecessary worry? What does experience teach us?

1. Extremists / activists / those with malign intent will always exploit the law, loopholes, well-meaning policies for their own ends, if given the opportunity to do so. The fact that those ends were not intended by those enacting the legislation or introducing a policy is irrelevant.

Those seeking to simplify the law on admissibility of computer evidence, for instance, never intended that this should be used to enable prosecutions on the basis of flawed computer evidence.

2. The worst case will happen at some point.

See the Horizon cases as an example. The Scottish conversion therapy ban proposal could enable, in certain circumstances, a parent to be prosecuted for wanting to stop their daughter wearing breast binders because of the harm caused and because they are worried that she has not been correctly diagnosed.

3. The process of investigation is itself a punishment.

The process of investigation is a punishment, one that can often taken an inordinate length of time, be costly and upsetting for the person under investigation and their family. This is so even if no prosecution or other action occurs. The same can occur in disciplinary proceedings: see the length of time between the events leading to Rachel Meade’s suspension by her employer and the judgment this month that her employer and professional regulator had behaved unlawfully in how it had treated her. (The judgment is here; @LegalFeminist’s Naomi Cunningham acted for Ms Meade.)

4. Injustice takes a long time to be reversed.

In the Rachel Meade case, the original complaint was made in 2020. Judgment was finally reached in 2024. In other cases, people can wait very much longer. Seema Misra, one of the subpostmasters prosecuted on Horizon evidence, was convicted in 2010 with her conviction only overturned in 2021.

5. Even when a court rules, those disliking it will deny what it says and others will seek to ignore or misrepresent the judgment.

See, for example, the reaction by some to the Forstater judgment: it was grudgingly accepted that she could have the views she did but she – or anyone else sharing the same views – was not allowed to express them. This was contrary to what the judgment said but this misunderstanding has informed commentary about the case and actions taken by others based on that misunderstanding. This was one of the reasons Rachel Meade’s employers, Westminster City Council and professional regulator, Social Work England, lost the case.

Before passing new laws or introducing policies, before assuming that the worst cannot happen, legislators should heed the advice we set out here last April and, in particular, this: “What are the consequences, especially the unintended ones?” “What is the worst that could happen?”

To those who say no-one would do awful things with these laws, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

Naivety is unpardonable in legislators and policy-makers.

Legal Feminist Response To Financial Conduct Authority’s Consultation on “Diversity and Inclusion Financial Sector Working Together Drive Change”


Introduction

Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including in particular financial services, discrimination and data protection, as well as corporate governance, company law, corporate finance, criminal law, human rights law and public and administrative law. Our range of specialisms enables us to consider holistically the issues raised in the Consultation Paper (CP) and our collective experience enables us to comment on the practical implications of some of those issues.  As a non-aligned collective of lawyers from a range of backgrounds, we do not represent any particular firm or issuer and are therefore well-placed to give candid feedback on the issues raised by the CP.

Executive summary

For reference to consultation document see https://www.fca.org.uk/publications/consultation-papers/cp23-20-diversity-inclusion-financial-sector-working-together-drive-change

As feminists, we welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support the concept of evidence based strategies. However, the FCA’s proposals engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.  Our more detailed responses to questions are set out later in this response, but in summary:

  • The definitions of discriminatory practices and demographic characteristics are ambiguous and will cause confusion and so not meet the FCA’s objectives. We recommend the FCA adopt the definitions of discrimination and harassment applied in the Equality Act and the definition of bullying applied by ACAS, since these are all well understood and supported by a developed body of case law. The term demographic characteristics should be replaced with “protected characteristics” (with the possible addition of socio economic status) and should be defined by reference to the Equality Act.

  • Subject to our comments on the definitions, we support the proposals in respect of non-financial misconduct relating to colleagues and those relating to misconduct outside the workplace.
  • With regard to data collection, reporting and targets:
  • The sector has not yet done enough to tackle the cultural issues faced by women and the barriers which lead to women leaving the sector and which hold back their progression to senior roles. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  
  • We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of women and ethnic minority membership of boards as a result of board level initiatives and support the greater extension of this to senior leadership. 
  • More should be done to address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore track outcomes for women following pregnancy and maternity leave – for example through exit and promotion data, and develop specific strategies to tackle the issues and improve outcomes.
  • That said, lack of promotion cannot be solely blamed on pregnancy and family responsibilities.  Firms should also focus attention on systemic biases that persist regardless of family responsibility including by analysing data on evaluations, progression, allocation of opportunities and exit data.

  • Collection of data on sex (rather than gender) should be mandatory to reflect the protected characteristic in the Equality Act and so minimise data protection issues. This will better facilitate use of the positive action provisions of the Equality Act and therefore enhance achievement of the FCA’s objectives. It will also align with the mandatory disclosure regime for listed companies under the Companies Act. 

  • Allowing organisations to choose to report on gender instead of sex constitutes indirect discrimination since it places those with gender critical beliefs at a particular disadvantage and is not objectively justified.  As such, the FCA would be inducing a breach of the Equality Act.  We have suggested a more proportionate approach in our comments below.

  • Allowing organisations to choose between sex and gender will also lead to inconsistency and poor quality data. Encouraging collection of data on gender is therefore inconsistent with the FCA’s Public Sector Equality Duty (PSED) set out in the Equality Act 2010.

We have answered questions 4, 5, 7 8 and 10 to 17 of the CP below.

Q4: To what extent do you agree with our definitions of the terms specified? 

We disagree with the definition of discriminatory practices.

In order to achieve the FCA’s objectives, it is essential that key definitions are clearly defined in order to ensure transparency, consistency and fairness of application. Since discrimination and harassment can be unintentional and under the proposals there are potential career ending consequences if an individual is found responsible for discriminatory practices, ambiguity must be avoided. 

The definition of the term “Discriminatory Practices” includes discrimination,  harassment or victimisation due to “demographic characteristics”.  However “demographic characteristics” is not defined and it is unclear what is meant by this phrase. In particular, it is unclear whether it includes all the protected characteristics in the Equality Act such as religion and belief, marriage and civil partnership, and what additional characteristics are included.

Our recommendation is that:

  • Either the term demographic characteristics is replaced with “protected characteristics” by reference to the Equality Act; or
  • If the intention is to include socio economic status, to define demographic characteristic as meaning “a protected characteristic pursuant to the Equality Act or socio economic status”. 

Q5: To what extent do you agree with our proposals to expand the coverage of non-financial misconduct in FIT, COCON and COND?

We disagree with the proposed language in FIT and COCON including the proposed definition of harassment.

We agree that non-financial misconduct should be addressed in FIT COCON and COND and recognise the need for the FCA to effectively reverse the outcome in the Frensham. However we have concerns with regard to the scope of the proposed extension:

With regard to conduct outside of work:

  • We agree that dishonesty outside of work is always likely to be relevant to the fit and proper assessment.
  • However, we have material concerns about the proposal to include conduct outside of work that does not involve “a breach of standards that are equivalent to those required under the regulatory system“. In particular, the amendments suggest that a person may be determined to lack “moral soundness, rectitude and steady adherence to an ethical code” as a result of conduct that is “disgraceful or morally reprehensible or otherwise sufficiently serious”.  Terms such as “disgraceful” and “morally reprehensible” introduce a significant degree of ambiguity. Firms are therefore likely to find it more difficult to determine whether an individual remains fit and proper or what to state in a regulatory reference. This is likely to lead to a lack of consistency which is undesirable.  In that regard we would note that the UK financial services industry operates in and draws its workforce from a multi-cultural environment. Accordingly,  there are likely to be cultural and other differences of view as to what is morally wrong.  The FCA’s objectives can be fully met by limiting non-financial misconduct committed outside of work to situations where the conduct is reasonably judged by the employer to amount to a criminal offence (whether or not the individual is charged or convicted). 
  • With regard to conduct towards colleagues:
  • The proposed definition of harassment goes beyond that in the Equality Act, is ambiguous, and will lead to a lack of consistency in determining whether workplace conduct amounts to a breach of the Conduct Rules.  The proposed definition starts with the same language as that of the Equality Act, but goes on to cover conduct that “is unreasonable and oppressive” or “humiliates, degrades or injures” the other person. The reference to “unreasonable” conduct creates unnecessary ambiguity. This risks creating uncertainty for firms seeking to apply the definition. This is unacceptable given that a finding of harassment could end an individual’s career. The ambiguity will also lead to inconsistency between firms. We recommend that the COCON amendment adopt the Equality Act definition of harassment alone. This is a longstanding, well understood definition, with a well-established body of caselaw to assist in its interpretation. 
  • The Conduct Rules should also incorporate an important safeguard to interpretation in the Equality Act currently omitted from the proposed COCON amendment. Under the Equality Act harassment is unlawful if it has the proscribed effect (ie if the act in question creates a hostile etc environment) even if that effect was unintentional. However the Equality Act goes on to state that when considering if the actions have that effect, account should be taken of the other person’s perception, the circumstances, and whether it is reasonable for the conduct to have that effect. This ensures a level of objectivity in the assessment. While we also welcome the list of general factors for assessing misconduct in relation to colleagues set out in the draft COCON 1.3 , (such as whether the conduct is repeated, its duration, degree of impact and likelihood of damage to culture, the relative seniority of those involved and whether the conduct would justify dismissal), we recommend adopting the additional language from the Equality Act in addition to the proposed general factors.
  • It is our view that conduct toward colleagues should not be regarded as misconduct unless the employer reasonably considers that it amounts to harassment or victimisation within the meaning of the Equality Act and in respect of the characteristics protected by the Equality Act, or harassment within the meaning of the Protection from Harassment Act, or bullying within the definition provided by ACAS, or commission of a criminal offence.  

With regard to the threshold Conditions, we note our concerns stated above regarding the definition of Discriminatory Practices. 

 Q7: To what extent do you agree with our proposals on D&I strategies? 

We agree with the FCA’s proposal that firms should be required to develop evidence based strategies.

The sector needs to do more to tackle the cultural issues faced by women, the deconstruct the barriers that prevent women rising to the most senior levels, and to retain women in the sector. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  In this regard we note:

  • Women typically are more likely than men to take time out of their careers for children, and to bear an unequal share of the burden of childcare. The sector has not done enough to understand and address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore expressly track outcomes for women following pregnancy and maternity leave, and develop specific strategies to tackle the issues and improve outcomes, for example to address allocation of career developing opportunities. 

  • However pregnancy and maternity leave are not the sole reasons for the lack of women in senior positions. Firms should also focus attention on systemic biases that have led to this.

  • Some firms have tried to address under-representation of certain groups including women and ethnic minorities through a range of initiatives such as training, policies and mentoring programmes. While these programmes can have positive benefits, they have not to date led to sufficient progress. They are often fragmented, and do not tackle the fundamental structural and cultural issues that persist.  At a time when DE&I resource and funding is under material pressure, we welcome an evidence based approach that focuses on the issues facing women and other underrepresented groups, and which looks at why existing initiatives have not worked.

  • We consider that firms need to investigate and understand what is happening in their organisations, at every point in the employee life cycle, in order to identify where the true challenges are, and develop a strategy to address these challenges. This would involve examining  data not just on recruitment, but at every stage of decision making from intake to annual evaluation, pay and bonus, promotion, allocation of work and opportunities and through to leaver data. For example:

    • Is there evidence that women are less likely to achieve the highest ratings in evaluations? Does this indicate systemic bias in the performance appraisal system?Whether there is bias in the firm’s system for allocation of developmental projects, client relationships and opportunities that are more likely to lead to promotion and higher bonus awards. 

    • Firms should then use this data to build their strategy to tackle inequality in allocation of work and opportunities, bias in the assessment of women and ethnic minorities, lack of transparency in promotion processes, lack of pay transparency, presenteeism and lack of recognition for the differing levels of contribution made by women and men to positive workplace behaviours. 

Q8: To what extent do you agree with our proposals on targets? 

We partially agree with these proposals. 

We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of listed company boards as a result of initiatives to set targets for representation of women and ethnic minorities and support the greater extension of this to senior leadership.

However we qualify our response noting that:

  • Firms should limit themselves to targets in respect of the main protected characteristics which are measurably under represented compared to the general population. These are likely in most organisations to be sex, ethnicity and disability. In addition, we support targets based on socio economic status. 

  • As noted below in response to question 10, data and targets should refer to sex not gender.

  • Targets should be set by reference to context including the population from which the firm recruits.

  • The FCA should state clearly how socio economic status is to be defined in the context of targets and reporting.

  • Targets should remain aspirational. The recent highly publicised investigation into discrimination in recruitment at the RAF demonstrates the risk where targets are treated as akin to quotas and where inappropriate pressure is placed on individuals to meet them.

Q10: To what extent do you agree with the list of demographic characteristics we propose to include in our regulatory return? 

We disagree with the proposal to make collection of sex data optional and to make maternity data optional. 

  • Sex is the relevant protected characteristic in the Equality Act 2010. Collection of data on sex should be mandatory. Gender is not a protected characteristic and does not have a recognised meaning. The conflation of sex and gender diminishes the value of the data, and has the effect of introducing self-identification of gender.  This will hamper achievement of the FCA’s objectives, since one of  the main reasons for lack of advancement of women is structural sexism. If data on sex is not collected, structural sexism cannot be measured and addressed. 
  • In providing firms with the option of reporting on the basis of gender in place of sex, the FCA is itself inducing discrimination against those with gender critical beliefs:
  • Indirect discrimination occurs where a practice puts an individual and those who share their protected characteristic at a “particular disadvantage” unless this can be objectively justified. 
  • The gender critical belief (that sex is biological and immutable, and that gender is a concept based on the imposition of stereotypes on each sex) is a protected characteristic. 
  • If employers elect to collect data, set targets and strategy and report on gender rather than sex, those with gender critical beliefs will be placed in an invidious position: their alternatives will be to state something they do not believe in, ie their gender, which is unacceptable to them, not to respond at all, or to select “prefer not to say”.  
  • As such, they are deprived of the opportunity to have their most fundamental characteristic recorded. This places them at a particular disadvantage. Caselaw has made clear that the threshold for establishment of particular disadvantage is not in fact high.  A decision to collect data on gender not sex exceeds this threshold by some considerable margin.  It is more than reasonable for those with gender critical beliefs to wish to have their sex accurately recorded, not to record a gender which they don’t believe exists, and not to be placed in the invidious position where because they cannot respond to the term gender, and are not offered the chance to state their sex, meaning that one of their most fundamental protected characteristics is not recorded.
  • Such a requirement cannot be objectively justified.  While the aim may be to accommodate those trans-identifying colleagues who wish to record their gender, the replacement of sex with gender is not a proportionate way of achieving that aim.  It is deeply offensive to those with gender critical beliefs, and particularly to women. It clearly cannot under any circumstances be appropriate to entirely erase one protected characteristic – sex – in the interests of accommodating.  The more proportionate approach would be to collect data based on sex recorded at birth, combined with a supplementary optional question as to whether the individual considers they have a gender identity that differs from their sex recorded at birth.  This would also have the benefit of ensuring that the employer had accurate data on both issues.  
  • Accordingly, any requirement on or by firms to ask individuals to identify their “gender” is therefore discriminatory.  
  • We also envisage that many of those holding orthodox religious views would similarly disbelieve in innate gender overwriting sex and so would similarly be subject to discrimination.
  • Encouraging discrimination is inconsistent with the PSED.  
  • Following a legal challenge to the ONS, the UK Census collects data on sex. This approach has been followed by the Solicitors Regulation Authority (SRA).  The SRA’s approach is to collect data on sex, with three options: male, female and prefer not to say. This is followed by a question to accommodate those hold the belief that they have a gender identity (by asking if they consider they have a gender identity different to their sex as registered at birth). This approach enables accurate collection of data on sex and would better achieve the FCA’s objective.
  • As part of their diversity strategies, firms should be encouraged to use the positive action provisions in sections 158 and 159 of the Equality Act. Section 158 for example, facilitates initiatives such as sponsorship and mentoring programmes, diverse interview panels, diverse long lists, specialist open days and outreach programmes etc.  Section 159 enables a decision to appoint an individual from an underrepresented group if certain stringent conditions are met.  As Government and EHRC guidance makes clear, reliance on these provisions is dependent on having data. Accordingly, the ability to apply these provisions in respect of initiatives focused on women is dependent on having good quality data in respect of the protected characteristic of sex.  Data based on “gender” would not meet this requirement.
  • Under GDPR there is a clear legal basis for collecting data on sex, whereas that is not the case for “gender” which is arguably special category data.  
  • The FCA is subject to the PSED under the Equality Act meaning that it must have ‘due regard’ to the need to: 
  • eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the EqA]
  • advance equality of opportunity between people who share a protected characteristic and those who do not share it and, 
  • foster good relations between people who share a protected characteristic and those who do not share it. 
  • Application of the PSED must be related to the protected characteristics in the Equality Act. Mandatory collection of data on sex would ensure that regulators are able to comply with the PSED:
  • Policy making that seeks to conflate two protected characteristics (sex and gender reassignment) or introduce the concept of gender, which is not a protected characteristic, would fail to advance equality of opportunity between those who share one of those protected characteristics and those that do not.  It would therefore be a breach of the FCA’s duties under the PSED to implement proposals to replace sex with gender, or treat sex as not mandatory.
  • In this regard we note that the Government has abandoned the use of the term “BAME” because (a) aggregation of data for different ethnic groups masks differences in outcome, and (b) because of the offence caused to groups who found themselves grouped together notwithstanding their very different experiences. By analogy, use of the term gender will aggregate the women and those born male who identify as trans, notwithstanding that they will have different experiences, particularly those who identify after their careers have been established. It has also been established that men and women have different risk taking behaviours.   It is very likely that from a risk perspective, the risk taking behaviour of those born male is more likely to align with their birth sex. Further, and as noted above, aggregation is offensive to those with gender critical beliefs.
  • We also consider that firms should collect data on pregnancy and maternity.  Pregnancy and maternity are major contributors to women leaving the sector, to the reduction in opportunities, and lack of promotion to more senior roles. The impact of pregnancy on women’s careers is far greater than the impact that becoming a parent or taking paternity leave has on fathers. In fact there is some evidence that men’s careers take off after fatherhood.  While pregnancy and  maternity leave are for a limited time period, firms could still measure and track progress for women on return from maternity leave – for example how long do they stay, are they overrepresented in redundancy exits, are they under-represented on promotion, and what is the impact on bonus. While the data sets may be relatively small, data protection concerns could be addressed by requiring firms to collect and report such data to the FCA,  but not publish it. 
  • We reject the suggestion that data on parental responsibilities is a more suitable long-term metric than pregnancy and maternity data. There is clear evidence that motherhood has a detrimental impact on women’s careers, and that parental responsibility does not affect men’s careers in the same way. Our view is that firms should collect and report data on pregnancy and maternity, and that data on parental responsibilities should be sub divided by sex.   

Q11: To what extent do you agree that reporting should be mandatory for some demographic characteristics and voluntary for others? 

We agree that in principle reporting of some characteristics should be mandatory and others voluntary:

  • We consider that the mandatory requirements should be limited to key demographic characteristics.  
  • Reporting on parental responsibility should be subdivided by sex, reflecting that typically the impact of parental responsibility on careers differs between men and women. Indeed there is some evidence not only that women’s careers are harmed by having children, the career and pay prospects of men improve.

Q12: Do you think reporting should instead be mandatory for all demographic characteristics? 

No. We consider that reporting (and resources) should focus on key characteristics, including sex, ethnicity and disability. 

Q13: To what extent do you agree with the list of inclusion questions we propose to include in our regulatory return? 

We agree save that the reference to feeling insulted or badly treated because of personal characteristics should be restricted to protected characteristics.

Q14: To what extent do you agree with our proposals on disclosure? 

We agree save that disclosure should relate to sex, not gender.

Q15: To what extent do you agree that disclosure should be mandatory for some demographic characteristics and voluntary for others?

Disclosure of data in respect of sex, ethnicity and disability should be mandatory since these groups are clearly under-represented in comparison to the UK population,

Q16: Do you think disclosure should instead be mandatory for all demographic characteristics? 

No – see our response to question 15. The experience of Legal Feminist is that reporting on multiple characteristics is likely to lead to a diversion of resources away from the key priority areas, as firms would need to spend time and resource on a campaign to build up reporting of data. 

Q17: To what extent do you agree that a lack of D&I should be treated as a non-financial risk and addressed accordingly through a firm’s governance structures? 

We agree.

Safeguarding Children

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.

When the truth offends 

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.

Barristers: read the small print

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. 

Limitations on domestic violence protections in the Immigration Rules justified, Court of Appeal holds


In the recently published case of R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439, the Court of Appeal has looked at the domestic violence concessions in the Immigration Rules.

What are the domestic violence concessions?
These were originally introduced in 1999 following a seven year campaign by Southall Black Sisters. Those who enter the UK as spouses of permanent residents or British citizens have “no recourse to public funds” and must be self-sufficient. They are granted five years leave to remain (two prior to 2012) after which they may apply for indefinite leave in their own right. The problem with this is that if a woman enters the UK only to find that her husband is an abuser, she faces an impossible choice: remain in the marriage for the requisite five years, or leave and face destitution and loss of immigration status. The 1999 concession allowed a victim of domestic abuse in these circumstances to apply for indefinite leave before the end of the spouse visa. The concession was replaced in 2002 with paragraph 289 of the Immigration Rules, and that in turn was replaced again in 2012 by the “DVILR” section of Appendix FM to the Immigration Rules. 

What this did not solve was the issue of destitution, particularly during the period where an applicant was preparing the application and while it was being considered, which could take some months. In 2012 the “Destitute Domestic Violence Concession” (DDVC”) was introduced whereby a victim of domestic abuse could apply for a three month bridging visa which would allow her access to public funds and the right to work while she prepared her application and applied for indefinite leave under DVILR. 

The current domestic violence rule can be found here and the crux of it is that 

The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

What’s the issue?
The eagle eyed reader will have spotted that the rule is no longer restricted to partners of British citizens and those who are settled. The rule is now also available to partners of refugees and to partners of people in the UK with what is known as “pre settled status” – European nationals who did not gain fully settled status. 

The reason for extending it to partners of refugees is obvious. Partners of those with pre settled status are included because the Withdrawal Agreement required the UK to treat EU nationals applying under the scheme no differently to British nationals. 

However, partners of people on other visas are not included. This is not a new problem; the joint report from Southall Black Sisters and Eaves recommended in their 2013 review of the DVILR scheme one year on that it should be extended to those on other visas, commenting that “it is still a concern that this concession applies only to very specific group and relatively small group of women. All women in the UK, irrespective of their immigration status, should be entitled to equal access to safety and justice and to be able to access life-saving support and advocacy.”  

Why now? 
The Home Office line has always been – and continues to be – that the scheme is only available to those with a “legitimate expectation” of settling here. In written evidence before the Court of Appeal, the Home Office set it out in this way:

“The rationale for the terms of the DV Rule concession was (and is) that individuals who come to the UK as the spouse or dependant of a partner who is present and settled in the UK will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions concession means that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave. They should also not feel compelled to leave the UK when the reason for being here (to live here permanently with their British or settled partner) falls away through no fault of their own.”

…

“The rationale for the present policy is, as stated above, that those who have come to the UK as the spouse or partner of a person present and settled in the UK (or with refugee status or pre-settled status) have come to the UK in the reasonable expectation of being able to live permanently. They would have an expectation of permanent settlement but for the breakdown in the relationship as a consequence of domestic abuse. But those who have come as the partner of a person on a temporary work or study visa have no such legitimate expectation.”

However, the post-Brexit inclusion of EU nationals with pre-settled status, which is not permanent, meant that there was now a comparator. This was important, because it meant that the Appellant was now able to argue that she was being treated in a discriminatory way regarding her private and family life, contrary to Articles 14 and 8 of the Human Rights Act. To succeed in an Article 14 discrimination argument, a person must show that they are being treated differently by comparison to persons in an analogous or very similar situation. 

What was the case? 
SWP was an Indian national who moved to the UK with her husband when his company moved him to the UK to work. There was some confusion over exactly what type of visa it was, but the case proceeded on the basis that it was a Tier 2 (General) visa. People who come to the UK on a Tier 2 (General) visa do not have an expectation of settlement necessarily, but if they live in the UK with this type of visa for long enough they will be permitted to settle. 

Her husband was violent and abusive to her both in India and the UK. She finally managed to leave the relationship after he sexually assaulted her and tried to suffocate her. She fled with their son to a domestic violence refuge. With her visa about to expire, she tried to find a sponsor of her own to acquire a visa independent of her husband, but as her own profession of primary teacher is no longer on the shortage list, she was unable to find a sponsor. She therefore made an application for the DDVC. 

This was refused because she was not the partner of a person who was settled or British, but the partner of a person with a Tier 2 visa, and she was therefore not eligible. She applied for judicial review of the decision, which was rejected, and appealed to the Court of Appeal. 

What did the court decide?
The Home Office did not agree that the decision was discriminatory under Article 14 although they did agree that it was linked to Article 8 (private and family life). Article 14 can only be relied upon in relation to one of the other Articles; it is not a standalone right. 

The first court had already ruled that there was a sufficiently close analogy between the partner of a Tier 2 migrant and the partner of a person with pre-settled status. 

The crucial issue was therefore whether or not the difference in treatment was justified. 

The Court of Appeal decided that the difference in treatment was justified. The Home Office had a policy reason behind the differentiation and a “wide margin of discretion” is open to the government in choosing its policies on general measures of social strategy. Brexit was a “unique phenomenon” and provided “an objective and reasonable justification for the difference in treatment which now arises under the EUSS.” 

The appeal was therefore dismissed. 

What next?
It is possible that SWP may appeal to the Supreme Court, although even if she won it would be a pyrrhic victory since the Home Office very belatedly realised that her husband was not a Tier 2 (General) migrant on a route which might lead to settlement, but in fact was a Tier 2 (ICT) migrant on a route which very definitely does not. Understandably, she had not had access to his documents and did not know this herself. 

As things stand, there is therefore no DVILR route for those who are victims of domestic abuse but whose abusers are not settled. 

The Home Office approach is unfortunate, because it leaves migrant women very vulnerable to domestic abuse. While some will be able simply to leave their abuser and go back to their home country, this is not always possible for women who are from countries where divorce is a social taboo, or where there are children involved. Bleakly illustrative of this is SWP’s evidence that she could feel compelled to return to her abusive husband if her appeal failed, as she would not be able to afford to educate him in India by herself. There will be many women in similar situations weighing the merits of remaining with an abuser if they cannot remain in the UK if they leave him. Sadly, it seems this is not a situation the Home Office is willing to change. 

Edinburgh University, freedom of speech and the heckler’s veto

Edinburgh University has for a second time allowed protestors to prevent the screening of the documentary film “Adult Human Female.” It was initially to be screened in December 2022, but cancelled when demonstrators occupied the university buildings. The rescheduled showing was arranged for 26 April 2023, but prevented once more by a large group of protestors. 

Protestors blocked off the entrances and physically stopped anyone from getting inside. The event was once again cancelled.

The protestors of course regard this as a victory for the prevention of intolerance. A spokesman told the Times that 

“Their argument is that trans women are the problem and are men in disguise and that is a lie. It is tarring a whole community and demonising them. Free speech is fine for everybody but it does not extend to the intolerant and hateful.”

There is nothing in this quote to suggest that the spokesman had in fact watched the film. But what is more remarkable is the spokesman’s claim that free speech “does not extend to the intolerant or hateful.”  

As we have said before, the relevant provision is Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows: 

  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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  1. 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.

In the first three paragraphs of his judgment in R (Miller) v College of Policing & CC Humberside [2020] EWHC 225 (Admin), Julian Knowles J summarised three famous citations on free speech: 

  1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
  2. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said 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.”
  3. Also much quoted are the words of 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  … “

That of course does not mean that freedom of speech is unlimited. It may be limited where a legitimate aim is pursued, although as was said in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127,

The existence of a broad legitimate aim is a mere threshold to the key decision in this case, as in almost all cases it must be. Such a legitimate aim must have limits. It cannot extend too far. In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.  

This is particularly so when the speech in question, here the film Adult Human Female, is itself an expression of protected views. 

Proportionality is key to any decision to limit free speech. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at [49]:

“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it 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 sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

There are two issues here, in terms of freedom of expression (I am not considering here the law on academic freedom, but only human rights. For those wanting further reading around academic freedom, the law in England and Wales can be found here and Scottish law here.) 

The first is whether the film Adult Human Female really is as offensive as the protestors claim. That in my view is inconceivable – it discusses proposed changes to the law from the perspective of one of the affected groups, namely women. 

The second is that even if a sector of the population disagrees with it, feels personally affected or is offended by it, this intimidation is disproportionate and anti-democratic. A protest that does not prevent the event from taking place must be possible. 

It is noteworthy that one of the groups who are highlighted as anti-democratic in the film are UCU. A number of the academic interviewees express disbelief that a union for those whose lives are dedicated to the pursuit of knowledge should behave in such an anti-intellectual way. I do wonder whether UCU’s enthusiastic support for the protests in Edinburgh is to spare its own blushes should their students watch the film and find out how spineless their tutors are when faced with intellectual disagreement. 

Freedom of expression is valuable. If the protestors’ freedom of expression were similarly impaired by mob justice, they would be outraged. They should be careful what they wish for.