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Where Are Your Values Now?

Ever since the financial crisis, statements of values, mission statements and Codes of Conduct have proliferated like the most determined weed among pretty much every financial organisation. Changing the culture was the focus of regulators and senior management. What better way to start than to have a wonderful statement saying how well you would behave in future and how well you would treat anyone you dealt with, from your staff to a contractor working remotely thousands of miles away, customers, suppliers and so on. Everyone would be embraced and treated well. If it all had a “kumbaya let’s teach the world to sing” flavour to it, even the most cynical, churlish observer would surely think this better than the sort of misconduct which had shredded the reputations and balance sheets of so many.

All of these documents contained much the same. Three items are always present: the need for “integrity” – often clarified as “doing the right thing”, “fairness” – which usually encompasses tolerance and no discrimination and a conflicts of interest policy – to help avoid the sorts of situations which might result in people doing the wrong thing.

Let’s take one such example from NatWest. Its Code of Conduct says: “We act with integrity and take risk intelligently.” It talks about an environment “free from bullying, harassment and discrimination” (though it introduces a protected characteristic which does not exist in the Equality Act) and a “fair and inclusive environment where we all feel we belong”. It talks about “relentless curiosity” and “broad perspectives” and testing thinking on “people with different views”. It mentions its Conflict of Interest Policy and reminds people of the FCA requirement to “act with due skill, care and diligence”. On and on it goes with 13 pages of worthy sentiments and ambitions.

It’s not just the financial sector which has these. Pretty much every sector now has some sort of values statement and Code of Conduct. But for those in a highly regulated sector – such as finance, law, accountancy, the police – these statements are not just “nice to haves” but essential to showing that the entities, the professionals working in them, senior managers and the Boards of Directors fully understand and are taking steps to comply with their regulatory obligations, the law and their fiduciary and corporate responsibilities.

Now let’s look at the responses to the Supreme Court’s judgment in the For Woman Scotland (“FWS”) case. Some organisations have responded by expressing concern for trans employees; some have stated that they will continue with internal policies which are now not in compliance with the judgment i.e. the law. And others have signalled their determination to defy the law.

Is this wise? If your stated values are to act with integrity and comply with the law, stating that you will not do this because you do not like what a judgment says undermines and breaches whatever Codes of Conduct and values statements you have. It sends out a dreadful signal to your staff and others – that compliance with laws and rules is optional. There are plenty of bankers, traders, policemen and others – some of them in our prisons – who have taken this approach. Is this the message you want your staff (let alone others) to hear? Be in no doubt: some will hear this and some will act on it and you have just given them the green light to do so.

What about expressions of concern? What’s wrong with them? Well, context is everything and there are a number of things wrong or inadvisable. The judgment was about the rights of women and gay people, specifically lesbians. It expressly stated that trans people had not lost any rights. If your first reaction is to reassure people who have not lost any rights rather than say something to a much larger community whose rights were at risk and whose rights you may have prejudiced by your policies, you are signalling a curious set of priorities. Some might notice that you did not say anything when FWS lost twice in the courts below. Why not? Were the concerns of those affected not important? Did they not need support? How does this exemplify fairness or inclusivity? What message is it sending out to the women who work for you or are your customer, suppliers, contractors and so on? It suggests you believe in a hierarchy with one group’s rights considered more important than others when in fact the Equality Act creates no such thing

Two further points: risk assessment and conflicts of interest.

Legal risk is one of the risks that all organisations must take account of. The Supreme Court judgment did not come out of the blue. There were two decisions in the lower courts. There was an earlier FWS victory in 2022 which established that people without a GRC could not be considered members of the opposite sex. It was a Scottish decision but there was always an appreciable risk that it would be persuasive in an English court should the matter be litigated. There have been a large number of employment tribunal decisions raising issues around direct and indirect sex discrimination, harassment and protected beliefs since at least 2021. The risks of having policies in place which did not fully take into account a correct understanding of the law and the lessons to be learnt from those cases were ones which directors and managers had a legal and regulatory obligation to consider carefully. It is not at all apparent that they did so. Rather they seem to have delegated this to HR and/or outsourced this to external bodies. Again, was this wise? What steps were taken to ensure that HR was taking all the right factors into account? What steps were taken to ensure that legal advice was being taken from those expert in this area?

This takes us to one issue which has been overlooked: conflicts of interest. A Conflicts of Interest policy is essential in many sectors, particularly highly regulated ones. But it is applicable to every sector. A glaring and unaddressed conflict of interest, often more than one, is present in pretty much every scandal: whether in finance, the building sector, the NHS, the Post Office and many others. There are public inquiries and their reports which spell this out – time after time.

But in the case of sex/gender, too often banks and others have sought advice from lobby groups with no legal expertise on how they should treat a particular minority. They have not done this for all minorities: religious groups, for instance. They have not asked hard questions about precisely what they were getting and why. Nor whether what they were being told was lawful. Nor whether it might affect others and whether such others should be consulted. Nor did they consider whether there might be a clash of interests and, if so, how this might be resolved. Nor did they notice that if they were paying a group such as Stonewall to approve their policies and place them high up in their index of approved employers, they were creating an obvious conflict of interest – one which they seemed not to notice or take any steps to mitigate. They did not ask themselves whether going “beyond the law” might possibly result in them breaking the law. It seems not to have occurred to anyone that doing what one single issue lobby group wants simply to get high up in its ratings is as bad – and as much of a conflict of interest – as stretching the rules to do what a high paying customer demands you do. They failed to apply their own policy to their own behaviour. There was, bluntly, a lack of “curiosity” and “due diligence” of a most elementary kind.

This is a corporate failure. It is a legal failure. It is a lack of due care, skill and diligence. And it is a failure of all of these – when a judgment comes out – not to take time and careful thought about what it says and means and how to implement it fully and fairly, having taken proper advice from those who really understand it – not those who seek to undermine or ignore it. This is basic stuff for any properly advised senior management team. It is one which has, unfortunately, too often been missing. Babies and toddlers have tantrums. Company Boards should not. It is high time company Boards and management at all levels took their responsibilities seriously, the most important of which is to comply with the law. Codes of Conduct are, after all, meant to be more than a bit of pretty PR.

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:

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))

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.

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.