Author: legalfeminist

Response by Legal Feminist to Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance

Written by a multidisciplinary team of feminist lawyers headed up by Sarah Vine KC

INTRODUCTION

  1. The existing legal framework in respect of consent obtained by deception establishes two authoritative positions:

 (i)       Where consent to a sexual act has been obtained by a deliberate deception as to a matter sufficiently proximate to the nature or purpose of that act, that consent may be vitiated; and

 (ii)      The fact of a sexual partner’s biological sex is so fundamental to the freedom and capacity of a person to agree to sexual activity[1] that a deliberate and operative deception as to biological sex is capable of vitiating consent.[2]

2.         The CPS is a creature of statute. It has no function other than to uphold the law by prosecuting criminal offences as stipulated in the Prosecution of Offences Act 1985. The CPS is a public authority which must operate within the law, and it has a duty to act in compliance with the European Convention of Human Rights[3]. It has no power to create or change the law.     

3.         The CPS may adopt policies to ensure that its charging decisions are consistent with the relevant rights engaged. In the context of this consultation, the relevant rights are those under Articles 3, 6, 7, 8 and 14 ECHR. Policies must operate within the confines of the existing law; the CPS cannot make or change the law through its policies.    

4.         The current CPS charging policy is irrational and unlawful. The proposed changes exacerbate these faults. Both current and proposed guidance invite lawyers tasked with making charging decisions to take account of matters which are irrelevant, prejudicial, unreliable and ideological.     

5.         The guidance undermines the effect of McNally in relation to a suspect who expresses a belief in a gender identity and asserts a gender identity at variance with his or her biological sex.

6. The guidance elides two matters which are categorically different in both fact and law. 

(i) A suspect’s knowledge of his or her biological sex;         
(ii) A suspect’s belief that he or she has a gender identity.

The former is something which any person over the age of criminal responsibility can be taken to possess. The latter is a subjective and metaphysical belief. It can be claimed by anyone but can be neither verified nor falsified. 

7. It is apparent that the guidance is drafted based on one or both of two false premises:

 (i)       That gender identity allows a person a discrete category of heightened privacy;

(ii)       That the belief in gender identity is capable of eclipsing, for all material and legal purposes, a person’s understanding of their own biological sex.

8. The introduction of either of these premises into the determination of criminal liability is a significant departure from the law as articulated in McNally, and enjoys no legal authority from any source. It is a purported change in the law which would almost certainly require primary legislation, and which on any view the CPS is not competent to make.

DEFINITIONS

Sex

9.         Sex is an objective, fixed and verifiable characteristic[4]. It is biological and binary in its nature; people with ‘intersex’ or DSD conditions are male or female, irrespective of those conditions. Sex is one of the protected characteristics under the Equality Act 2010[5].

Gender Identity

10. Gender identity is a disputed notion. The proposed guidance demonstrates the nebulous character of gender identity in the various attempts to define and illustrate it. Gender identity has no legal definition. It is a wider concept than the legally defined ‘gender reassignment’[6] which, itself, is wider than the category of people with a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004.           

11. A GRC grants the holder the right to be treated as their acquired gender. The scope of this right was described by Choudhury J. in Forstater v CGD Europe[7] in the following way.           

“Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions [2017] 1 WLR 4127 .”

  1. Accordingly, a GRC does not change someone’s sex biologically. Biological sex in humans is immutable[8]. It is not changed by gender identity. Gender identity is not sex. It is not a universally accepted idea, nor even a broad social consensus. It is a subjective and metaphysical position assumed by an individual.    
  2. The Gender Recognition Act requires only that the applicant obtain a diagnosis of gender dysphoria; no surgical, chemical or other medical interventions are required. Intervention by way of hormones or cosmetic remodelling of secondary sexual characteristics is optional and, in any event, incapable of changing a person’s biological sex. The vast majority of those who describe themselves in terms that fall under Stonewall’s ‘trans umbrella’ (to which the authors of the guidance refer) have had no surgical alteration. 

DECEPTION

Deception and Consent: The Current Position

14.       The law relating to deception as to one’s sex is clear and settled. The statutory framework comprises s.74 of the Sexual Offences Act 2003, which defines consent, and s.76(2), which sets out the limited circumstances in which an operative deception will be held conclusively to vitiate both consent and any claim of reasonable belief in consent. Those circumstances are:

(i) deception as to the nature or purpose of the act, or 

(ii) impersonation of someone known to the complainant.

15. Beyond the conclusive presumptions, litigation has focused on the impact of deception on the freedom and capacity of a person to give consent (per s.74 SOA 2003). The determinative line held by the CACD has been one of proximity to the nature and/or purpose of the act[9]. The circumstances in which deception vitiates consent are narrow, and Parliament decided not to widen it by including in the 2003 Act any prohibition analogous to the terms of s.3 of the Sexual Offences Act 1956 (Procuring a Woman by False Pretences).           

16. The extent to which the CPS has strayed from legal authority is brightly illustrated in the fallacious assertion that an active deception may have occurred:

“where a suspect [with a GRC] falsely asserts that their gender identity is the same as their birth gender/assigned biological sex.”       

17.       This is a difficult concept. Those who have drafted the guidance appear to have in mind a situation in which a person who possesses a GRC and therefore may be presumed to have a gender identity at odds with his or her biological sex claims to have a gender identity congruent with his or her biological sex. So, for example, a trans-identifying male with a GRC declaring him to be a woman, but who falsely asserts that his gender identity is male; or vice versa.

18. The only deception in such circumstances would be as to gender identity. The guidance advises that a deliberate deception as to gender identity can vitiate consent. This must proceed from a position that gender identity is as close to the nature and/purpose of a sexual act as biological sex itself. This is a wholly fanciful proposition for which there is no legal basis. 

Gender Identity & Deception

19.       The idea of deception as to one’s gender identity is meaningless, because gender identity is neither verifiable nor falsifiable. With the exception of an expressed preference for opposite-sex pronouns, everything that might be relied on as proof of ‘living as a woman’ / ‘living as a man’ refers to inherently sexist imposed social codes and norms.         

20.       Gender identities are necessarily formulated by reference to a person’s biological sex. They cannot eradicate a person’s knowledge of his/her own sex. A belief that biological sex is of no importance, or that it is of subordinate importance to a person’s gender identity, does not alter the fact that every person knows their own sex. The same applies to the belief that gender identity should be allowed to take legal and social primacy over biological sex. A belief that one is ‘born in the wrong body’ is an acknowledgement of one’s biological sex. A belief that compliance with social codes of femininity and masculinity are what define men and women does not alter a person’s knowledge of their own sex. The assertion of a gender identity may be a signal that the person does not believe sex is of any real importance, but it also recognises that society at large believes otherwise. 

21.       A Gender Recognition Certificate creates a legal fiction that a person is for most legal purposes, the sex that s/he, objectively and scientifically, is not. A legal fiction is a ‘deliberate deception’, in circumstances where the latter term is stripped of its pejorative weight.            

22.       A person (with or without a GRC) who is ‘living as a man’ or ‘living as a woman’ may be presumed to be engaged in a deliberate deception, assuming that they seek to ‘pass’ as the opposite sex. Legally and socially, there is a broad consensus that such a deception should be accepted, or treated as acceptable, for many purposes in that person’s public life. (That person’s use of, and access to, single-sex spaces does not fall within the consensus, but will not be addressed here.)

23.       ‘Identifying as’ a man or as a woman cannot be equated with a genuine belief that one is male or female. In order genuinely to believe that s/he is biologically the other sex (as opposed to, for example, believing that sex is not biologically defined), a person would have to be suffering from a delusion. Some proponents of the ideology which underpins the idea of gender identity (‘gender ideology’) will assert that there is such a thing as a ‘female penis’ and a ‘male vagina’. These are ideological emanations which seek simply to reorganise biological facts in line with the philosophical position that the categories of male and female are subjective and independent of biology; since such a position refuses to recognise the law, it cannot amount to a genuine belief for the purposes of the law.

24.       The proposals advise prosecutors to treat what they regard as a genuine assertion of a gender identity as evidence of a genuine belief about a person’s sex in assessing an allegation of deception as to sex. This would be analogous to treating a man’s sincerely-held religious belief that wedding vows function as a perpetual consent to sex as evidence of both consent and a reasonable belief in consent in assessing an allegation of the rape of his wife.            

25.       The guidance turns on the idea that a person’s gender identity, if genuine, may render a deception as to their sex inadvertent. It advances the staggering proposition: 

“If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.”        


26.       This is irrational and amounts to a breach of Article 14 in respect of relevant substantive rights (paragraphs 30 to 35 below) for both complainants and suspects. It results in a situation in which the philosophical beliefs of one cohort of suspects will or may:

(i) impact on the likelihood of charge;

(ii) determine the availability of a defence to any suspect;

(iii) undermine the accessibility and foreseeability of the law for suspects; and

(iv) diminish the legal protection for complainants from inhumane treatment.

27.       As a defence it could only be afforded to people who believe in gender ideology or purport to do so (the availability of such a defence could be expected to encourage false declarations of belief). Its success or otherwise at trial would depend on the ideological beliefs of a jury, because a jury will only be able to accept that gender identity renders a deception inadvertent if the members subscribe to specific precepts of gender ideology. It would not, therefore, be a question of whether the members of the jury accept a defendant’s account, but whether they agree with its ideological premise. That is an invidious position in which to place both a complainant and a defendant, and a wholly unreasonable approach to the assessment of evidence in making a charging decision. It is doubtful that so arbitrary an operation of the law would satisfy the definition of an impartial tribunal for the purposes of Article 6 or the qualitative requirements of legality for the purposes of Article 7.

RELEVANT CONSIDERATIONS UNDER THE ECHR

Article 3: Prohibition of Inhumane Treatment

28.       Rape and Sexual Assault amount to inhumane treatment for the purposes of Article 3. The right not to be subjected to such treatment is absolute, and the effect of Articles 3 and 8 is to impose on the State an obligation to provide protection from, and legal redress for, rape and sexual assault committed by private individuals[10]. To the extent that the guidance precludes or impedes a positive charging decision on an unlawful basis, it runs contrary to Article 3 amounting to a failure by the State to meet those obligations.

Article 8: Respect for Private and Family Life 

29.       The most prominent legal error in respect of Article 8 is the silence as to a complainant’s rights to a private and family life (in particular as they interact with Article 3 rights). Article 8 rights apply to all individuals in the context of consent obtained by deception and the investigation into, charging decisions about, and the prosecution of such an allegation. The interference with rights to a private and family life involved in the prevention of crime[11] (as well as the protection of rights under Article 3) is justified where it represents a proportionate means of achieving a legitimate aim, necessary in a democratic society. The guidance views rights to a private and family life exclusively through the prism of the deceiver’s experience without any apparent regard for that of the deceived.         

30.       The sections entitled ‘Gender Dysphoria’ and ‘Gender Recognition Act’ disclose two further errors of law. One is to extend, without any legal basis, the protected characteristic of gender reassignment to include anyone with a stated gender identity which is at variance from their biological sex. The other is to treat privacy , again without any legal basis as a freestanding matter to be taken into account in assessing the factual matrix of an allegation, specifically the question of privacy as to a suspect’s biological sex. Both of these errors are in concert with the legal changes contended for by lobbying organisations such as Stonewall, Mermaids, Gendered Intelligence, Global Butterflies etc (all primarily concerned with the promotion and legal adoption of gender ideology).    

31.       In support of the erroneous approach to rights to a private and family life, the guidance cites the ‘CPS Trans Equality Statement’ from 2019 and the Equal Treatment Bench Book 2021. Neither has any legal force. The former was promulgated shortly before the short-lived CPS LGBT Hate Crime guidance for schools[12]. Emphasis is also placed on s.22 of the GRA which provides that it is an offence for a person who has acquired information about a person’s GRC in an official capacity to disclose this information to another person. Whilst the citation of this provision is not inaccurate, it discloses a partiality in the perspective of those drafting the policy. The restrictions on data processing set out in s.22 GRA add nothing to the provisions of Article 9(1) of the UK GDPR and s.170 Data Protection Act 2018 in respect of those holding, or applying for, a GRC. Article 9(1) of the UK GDPR, however, applies equally to all suspects and all complainants in allegations of sexual offending. In the context of a document suffused with the language of gender ideology, this choice does not present as inadvertent or politically neutral.   

32.       The obligations of Article 14 apply to the protection of Article 8 rights for both complainant and suspect. Trans identified people have a right not to be discriminated against in the enjoyment of their right to privacy. But a decision not to prosecute based on the legal errors in this guidance would engage the Article 8 and 14 rights of complainants, since the vast majority of complainants in such allegations are female. The scope of deceptions capable of vitiating consent to sexual activity is already extremely narrow; this guidance would limit that scope further, and exclusively to the benefit of trans-identified suspects. In doing so, it would reduce the level of protection afforded to victims whose consent has been obtained by deception as to the accused’s sex. This introduces an asymmetry to the protection against deception, leaving some victims at a material disadvantage against those whose consent has been vitiated by other operative deceptions, or by suspects who do not identify as trans. It creates a further asymmetry in the approach to charging as between those suspects who identify as trans (or claim to) and those who do not, engaging the Article 14 rights of suspects who do not identify as trans in respect of their protection under Article 7.         

33.       The legal position in respect of privacy as it pertains to consent obtained by deception is as follows:

(i)        There is no legal authority for the proposition that a person has a privacy right to withhold the fact of his/her biological sex from a sexual partner.

(ii)       The Article 8 rights of complainants in allegations of sexual offending are engaged; the right to privacy encompasses a complainant’s psychological integrity, bodily autonomy and dignity, all of which are centrally relevant to both the act(s) complained of and any consequential investigation and litigation.

(iii)      Complainants in allegations of sexual offending have an enhanced general position in privacy in domestic law[13].            

(iv)      To the extent that an accused person can rely on the right to respect for his/her private and family life, the right to privacy is generally lost upon charge[14]. Such exceptional cases in which a right to privacy subsists are dealt with by way of reporting restrictions.    

(v)       The right to anonymity for a defendant is a matter of ongoing contention and would require the authority of primary legislation before it could be given effect. 

(vi)      There is no reason why a trans identified suspect (or a suspect claiming to identify as trans) should have an enhanced right to privacy where another suspect would not. Such a proposition enjoys no support from s.22 GRA, the Data Protection Act 2018, the Equality Act 2010, the Human Rights Act 1998 or any case law.

(vii)     If, and to the extent that, both complainant and accused have ECHR rights engaged, the proper approach is the “intense focus” test[15], articulated by Lord Steyn at §17 thus:

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

34.       The process of accurately identifying rights to a private and family life as they relate to trans identified suspects has been made significantly more difficult by the way in which the guidance creates a single cohort of people with different legal statuses. Those with a GRC fall under Article 9(1) of the UK GDPR, and s.7 of the Equality Act 2010. Those without a GRC but who are “proposing to undergo, undergoing or ha[ve] undergone a process (or part of a process) for the purpose of reassigning [their] sex by changing physiological or other attributes of sex” fall under s.7 EA 2010. Those who have not undergone, and do not propose to undergo, any process of sex reassignment but who assert a gender identity different from their sex do not fall into the scope of either provision. None of the categories are entitled to an enhanced right to privacy, and the latter two have no access to the data processing limitations of Article 9(1) of the UK GDPR.[16]

UNLAWFULNESS

35.       The introductory remarks state that the proposed guidance is intended to assist prosecutors with a complex area of law. Since the unwavering focus of the proposed guidance is the trans-identified suspect’s right to privacy pursuant to Article 8, as it is said to interact with domestic law on deliberate deception as to sex, it would be reasonable to expect an indication of where, the protection of a suspect’s Article 8 rights is failing in practice. The consultation document is, however, silent as to this. Expressed bluntly, the guidance creates the impression that suspects who identify as trans should be more readily excused criminal liability for deception as to sex, not because the deception was not deliberate, but because they identify as trans.            

36.       The guidance treats a suspect’s gender identity as a relevant, or even determinative, factor in establishing whether a deliberate deception as to sex has occurred. Whether it is right, desirable or workable for this position to be brought into law is an undoubtedly important issue. It remains, however, unlitigated and unlegislated. Embedding a preferred view on the matter into policy in this way represents an overreach on the part of the CPS so startling that it could be described as an attempt to usurp the function of Parliament. The effect of the guidance is to interpret and apply the substantive law as though it had been changed in a number of respects, all of which are so significant that they would require binding judicial authority at the very least, if not primary legislation. This goes far beyond the CPS’s duty to apply the law and trespasses unambiguously into the territory of making law. It is frustrating the legislative function conferred on the CPS and is ultra vires.

37.       The guidance elides two categorically different uses of the word ‘gender’ in circumstances where the distinction between the two is central to the legal issue at hand. ‘Gender’ in the sense that it was used by Leveson LJ in McNally means biological sex, a matter which meets the legal requirement of proximity to the nature and purpose of the sexual act. This is the only meaning of ‘gender’ pertinent to the question of whether a deception as to sex was deliberate. ‘Gender’ in any of its other senses (a societal system of norms used to protect and enforce inequality between men and women, an individual’s metaphysical ‘sense of self’, a political identity etc) is incapable of meeting that same requirement and is wholly irrelevant to the assessment of whether a deliberate deception took place. The elision of these two matters for the purposes of applying the legal test does not serve the stated aim of the consultation (to assist prosecutors to have a better understanding of the law). Instead, it appears to promote an avoidable, unnecessary and legally baseless confusion with the result that prosecutors will be advised to make decisions on the basis of irrelevant considerations. This is an error of law and is, in our view, unlawful.

38.       The guidance expands beyond their legal definition the scope of s.9 of the Gender Recognition Act 2004 (misinterpreting the phrase “for all purposes” as applying far beyond the GRC holder’s public life) and s.7 of the Equality Act 2010 (to construe the protected characteristic of gender reassignment as being coterminous with gender identity), such as to make the legal and practical consequences of those provisions opaque. The combined effect of these misinterpretations is to confer a special status (reaching beyond the protections of the Equality Act 2010, the Gender Recognition Act 2004 or the Data Protection Act 2018) on an expanded cohort of suspects, whose common characteristic (gender identity) is not legally recognised. This further renders the guidance unlawful for errors of law and frustration of the legislative purpose.          

            THE SECTIONS

Gender Dysphoria

39.       Two sentences of this section are dedicated to the explanation of gender dysphoria as a medical diagnosis. The remainder of the section is given over to the somewhat different (and non-medical) topic of gender identity, perhaps to suggest that the two are largely coextensive. The relevant point is that both gender dysphoria and gender identity involve an individual having a clear understanding of what his or her biological sex is. Neither has any impact on the fact or nature of a deception as to sex.      

Evidential Considerations

40.       The point extracted from paragraph 26 of R v McNally [2013] EWCA Crim 1051 is correct, in that the CACD did find that the Appellant’s deception was deliberate. From this, the CPS assumes the position that the ‘inadvertent but operative’ deception as to sex is something of which a suspect should be able to avail him or herself by relying on the authenticity of his or her gender identity to establish inadvertence.            

41.       The axis around which the deception turns is the physical binary of sex; unless and until Parliament decides otherwise, gender identity is immaterial for the purposes of establishing whether there has been such a deception or whether it was deliberate; any guidance must reflect this fact in a way that is logical and immediately comprehensible. Deception as to gender/gender identity cannot negative consent, because a person’s stated ‘internal sense of self’ (sincere or otherwise) does not meet the threshold of proximity either to the ‘nature or purpose of the act’ for the purposes of s.76 SOA 2003 or to the act itself for the purposes of s.74 SOA 2003[17]. One need only consider a scenario in which B (a female) consents to penetrative intercourse with A (a male) on the basis that A has told B that his gender identity is Genderqueer, when it is, in fact, Two-Spirit. However unlikely such a scenario might be, no rational reading of the law would support the conclusion that B’s consent was vitiated by A’s deception.

42.       By contrast, misrepresenting one’s gender identity as one’s sex (where the former is opposed to the latter) is a necessarily deliberate deception. Every person knows their sex from a very young age, long before the age of consent. A person’s feelings or beliefs about the fact of their sex may be a source of great distress and pain to them, but the legal fiction afforded by a GRC cannot trespass into the arena of sexual consent. To operate otherwise would be to prioritise the privacy and dignity of some people at the expense of the privacy, dignity and right not to be subjected to inhumane treatment of their current or prospective sexual partners.     

43.       Virtually everything in the following extract from this section is legally confused or  wrong. This passage is diagnostic of the extent to which the proposed guidance is an ideologically driven attempt to circumvent the law as it currently stands:

“There is no duty to disclose gender history[18], but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC[19], may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex[20]; or lies in response to questions about their gender history; or denies being a trans man or a trans woman[21].”

44.       It is, perhaps, worth noting that at §10 of McNally, the appellant was described as repeatedly expressing the desire for a “sex change”. As previously observed, McNally uses the language of 2013, but the terminology of gender ideology would have little difficulty in describing her as a ‘trans man’. The proposed guidance may well result in a decision not to charge in the circumstances that met the court in McNally. The decision in McNally has drawn criticism from prominent proponents of gender ideology[22], to the effect that deception as to sex does not incur sufficient harm to justify the interference with a transgender suspect’s privacy. The authors of this policy appear to be seeking to overturn McNally without having to wait for any countervailing authority or legislation. 

45.       The legal protection of gender reassignment (not gender identity) creates conflicts with two other protected characteristics; sex and sexual orientation. It is difficult to identify an area of life in which those conflicts have a greater impact than they do in sexual activity. The centrality of a partner’s sex to a victim’s freedom and capacity to choose, and therefore consent, is set out in paragraph 26 of McNally:

“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant’s deception.”

46.       In the section ‘Was the complainant deceived and therefore did not consent?’, the influence of the gender ideology lobby is evident once again. Half of the questions invite an approach in which a complainant should be considered responsible for establishing whether s/he is being deceived about a sexual partner’s sex.

“Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?”          
and

“Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?”

47.       It has been a number of years since so sceptical an assessment of complainants of sexual offending has been considered acceptable at the CPS. This runs counter to the strategy of ‘offender focused’ investigations which the CPS has developed as part of its Violence Against Women and Girls strategy.                 

48.       The adoption of these revisions would expose the CPS to the very real risk of litigation on the basis that the guidance is irrational and unreasonable, that it breaches of the rights of victims under Articles 3, 7, 8, and 14 of the ECHR, the rights of suspects under Articles 7, 8 and 14 of the ECHR, and the Public Sector Equality Duty pursuant to s.149 of the Equality Act. The absence of an Equality Impact Assessment for this consultation is striking; it could be fairly regarded as shorthand for the comprehensive failure – or refusal – to consider the multiple conflicts of rights thrown up by this guidance.  

49.       For all the above reasons, we urge the CPS to suspend the current guidance and to withdraw these proposals. Any replacement must be drafted with the objective of upholding the CPS’s legal obligations as they are, and not as some would wish them to be.

[1] s.74 Sexual Offences Act 2003

[2] R v McNally [2013] EWCA Crim 1051

[3] S.6 Human Rights Act 1998

[4] Corbett v Corbett [1971]; Bellinger v Bellinger [2003] 2 AC 467, HL; Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, HL

[5] S.11 and s.212 Equality Act 2010

[6] S.7 ibid

[7] [2022] I.C.R. 1 at §97

[8] R (oao Elan Cane (Appellant)) v SSHD [2021] UKSC 56 at §3

[9] R v Jheeta [2007] 2 Cr. App. R. 34 §24; R(F) v DPP [2013] 2 Cr. App. R. 21; R v McNally (2013) EWCA Crim 1051; R (Monica) v. Director of Public Prosecutions [2018] EWHC 3508 (Admin) at §74, §80; R v Lawrance (2020] EWCA Crim 971

[10] MC v Bulgaria (2005) 40 E.H.R.R. 20 at paragraphs 151-153; D v Commissioner of Police for the Metropolis [2019] A.C. 196

[11] Article 8(2) ECHR

[12] This was withdrawn in 2020 in the early stages of a public law challenge

[13] S.1 Sexual Offences (Amendment) Act 1992

[14] ZXC v Bloomberg [2022] UKSC 5

[15] In re S [2004] HL 47

[16] Article 9(2)(f) UK GDPR

[17] R v Lawrance (2020] EWCA Crim 971, Assange v Sweden [2011] EWHC 2849 (Admin), R (oao Monica) v DPP [2018] EWCA 3508 (Admin)

[18] Assuming that ‘gender history’ includes a reference to a person’s biological sex, this is a somewhat tendentious interpretation of R v B [2006] EWCA Crim 2945 and sits in contradiction to Lawrance at paragraph 41.

[19] This implies, incorrectly, that possession of a GRC entitles a person to deceive a sexual partner about their biological sex.  

[20] See §17ff above

[21] This clearly relates to the fact of a person’s biological sex

[22] See e.g.; ‘Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal and Ethical Debate’; Alex Sharpe, Routledge

CONFLICTS OF INTEREST

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

A thought experiment

Take a religious group – something like Opus Dei, for instance. What might it do if determined enough? Let’s imagine. 

  • It successfully presents itself as the only valid representative of all Catholics, indeed, all Christians in the UK – at least as far as the press and politicians are concerned. 
  • It attracts support from popular celebrities. 
  • It speaks regularly about discrimination against Catholics, how marginalised a minority and about their human rights (“Catholic rights are human rights”). 
  • It says anyone raising concerns about child abuse by Catholic clergy shows hatred. 
  • It describes those who criticize it or Catholics generally as “heretics” and “hate groups” or phobic.
  • It runs schemes whereby, for money, it audits organizations for how pro-Catholic – as determined by Opus Dei – they are. 
  • It advises organizations and trains their employees on language, facilities, policies, the steps they must take – both internally and externally – to promote the faith as promulgated by Opus Dei and earn those points. 
  • It requires organizations to teach all its staff (not simply Catholic ones) to talk about their souls, use religious language in their communications and remove any language or expressions which might offend Catholics. 
  • It publishes league tables identifying which organizations are the most pro-Catholic, as decided by it. 
  • It campaigns for changes in legislation to promote its religious ideals, changes which significantly alter existing equality legislation, especially for those opposed to religion having a say in legislation or affected by the changes it lobbies for. 
  • It lobbies for the abolition of civil and same sex marriage so that marriage will be  based on Opus Dei’s understanding of the Sacraments. 
  • It advises organizations on equality law based on what it would like the law to be.
  • It provides training and information packs to be used by schools. 
  • It has a flag, special days to celebrate what it stands for and regular public events at which employees from its members dress up in its religious habits and use its symbols, on vehicles, buildings and elsewhere. 

Finally, imagine that many of the organizations where Opus Dei do this are state or state-funded organizations – the police, local authorities, government departments, grant-giving bodies and health authorities. They sign up to its creed, use its language, promote its symbols and congratulate themselves not just on not being anti-Catholic but on being proudly pro-Catholic, pro-Opus Dei. 

Reasons for worry?

You’d think, wouldn’t you, that this is a bit odd. You’d be concerned at how a particular ideology was being spread without anyone else having a say. You’d be concerned that this seems to put the rights, interests and views of one group above those of others. You’d worry that it appears to be distorting or misinterpreting equality legislation. You might even wonder at the number of law firms signing up, thinking they’d be well placed to understand the law without the need to rely on non-legal lobbyists. You’d worry that the normal space for disagreement about aims and means was being squeezed out if any disagreement or challenge or questioning was described as “hate” and those expressing such concerns as “hate groups”. Above all, you’d worry that this creates a conflict of interest between what such organizations are legally required to do for all citizens and what they have agreed to do to satisfy Opus Dei and maintain their position in its league tables. 

You don’t, of course, need to imagine any of this because it is happening now. Substitute Stonewall for Opus Dei and it pretty much describes how Stonewall currently operates. 

The consequences

Those state organizations which sign up to Stonewall’s schemes have created multiple conflicts of interest: between themselves as employers and different groups of employees and between their public duties and their legal obligations to all citizens. They have blurred the distinction between a body carrying out public functions under existing laws and campaigning lobbyists. They have failed to recognise that such conflicts of interest exist. They have failed to consider the creation of a perception of such conflicts of interest, even if that was not their intention. They appear not to understand the problems arising when a body implementing the law acts as if changes desired by a lobby group advising it had already happened. Since they have not understood any of this, they have taken no steps to eliminate or mitigate such conflicts of interest. 

This is why we get the usual cycle of some unacceptable action or comment, protest, panic by the organization concerned, withdrawal of the original comment/action accompanied by an apology blaming it all on an underling/a mistake and assurance that whatever happened was not in line with their “values”. The fundamental underlying problem and how to address it seems to pass them by entirely.

The police

Nowhere is the existence of such conflicts of interest more troubling than in the police. The police enforce the criminal law. They have significant powers over us. They have a duty to police “without fear or favour”. They need not just do this but be seen to do this. The reality of bias, the perception of a bias are damaging to proper policing. Such conflicts of interest risk damaging the rule of law and citizens’ faith in it. 

This has been made more acute by three factors: 

(1) Police misunderstanding their obligations as employers under equalities legislation.

(2) Confusing their obligations as an employer with their outward-facing public service obligations.

(3) The police’s approach to non-crime hate incidents. 

Equalities laws and discrimination

Discrimination against police officers from minorities has understandably led to counter-measures. But what the police appear to have forgotten is that the obligation not to discriminate applies to all its staff. It does not simply apply to one group with a strong lobby behind it. In following the diktats of one lobby group, the police risk behaving in a way which discriminates, whether directly or indirectly, against others. For an excellent, detailed explanation of why – and the risks involved -, see Naomi Cunningham’s blog – https://wwww.legalfeminist.org.uk/2021/02/01/submission-and-compliance/.

Public duties

This approach has extended to its public-facing duties, as a direct result of the reach of Stonewall’s schemes. The training of staff according to Stonewall’s views will inevitably affect how they carry out their duties towards the public. More explicitly, Stonewall’s schemes expressly cover “service users”. For public bodies, this means us. It is astonishing and worrying that any public body – let alone the police – should think it appropriate to allow a lobby group to dictate, influence or advise on the performance of its public functions. The police’s sole purpose is to enforce the criminal law. When it needs advice, it should obtain this from expert criminal lawyers. If it needs advice on complying with equality law, it should obtain this from expert equality lawyers. What it should not do is obtain advice or training from – or be influenced by – a lobby group primarily acting for only one of the groups it polices. What is even more worrying is that in all the time the police have been part of Stonewall’s schemes, it appears not to have obtained legal advice on whether doing so creates a conflict of interest or the perception of one and whether, if so, this creates a risk in how it carries out its public duties.

Non-crime “hate”

The final point relates to the police’s approach to non-crime hate incidents. One might ask why the police are involved at all in matters which are not crimes. Whatever the reason, they have got themselves involved in what Lord Moulton described some 90 years ago as the “realm of manners” – that space between the law at one end and free choice at the other. 

They have allied themselves closely with one lobby group and adopted its view on matters where there are both differences of opinion, a changing scientific context and legislation and case law different to what the lobby group believes or wants. In so doing, the police have put themselves in a position where those who disagree with Stonewall’s position can have little 

confidence that in any incident involving such matters the police will be – and be seen as – compliant with the law, not overreaching their powers and impartial. 

This last point was seen in the Miller case where the Court of Appeal held that police guidance to record non-crime hate incidents –

“is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”. 

A year later, the College of Policing is proposing (apparently on legal advice) guidance allowing transgender officers to search those of the opposite sex to that of the transgender officer. This appears to be a breach of the relevant PACE provisions. It is, however, consistent with Stonewall’s view that a man who believes he is a woman is one and so should be allowed to carry out an intimate search of a woman. According to reports, the guidance also appears to suggest that a refusal by a woman or request for a female officer could be classed as a hate crime. The underlying assumption appears to be that intimate searches of the public are a service which, say, women should not deny to trans-identified male officers. This is a topsy turvy approach to police compliance with a law, one brought in after miscarriages of justice and police misbehaviour to ensure that evidence is properly collected without a sexual assault being committed and with proper regard for the dignity of the person being searched who is, it should be remembered, innocent. 

We’ve been here before

The police being beholden to groups with an agenda is not a new problem. In Northern Ireland ever since its establishment, the RUC was seen as the explicitly anti-Catholic enforcement arm of a “Protestant Parliament for a Protestant people”. The bias was real and ultimately fatal to the rule of law there. More recently, the issue of Freemasonry raised similar concerns. During the 1960’s and 1970’s, concerns about corruption in police forces arose because of a perception that Masonic officers were putting the interests of fellow Masons above those of the force as a whole or their obligation to obey the law. Membership of a secret organization was eventually seen as creating a conflict of interest between a police officer’s duties and his obligations as a Mason. There is an echo of this in the way that Stonewall’s agreements with members of its schemes are not made public on the grounds of commercial confidentiality, despite the obligations they place on public servants.

Now

This time it is not whether individual officers may have a conflict of interest. Rather it is that police forces – by making themselves beholden to Stonewall’s agenda through its schemes – are explicitly putting themselves in a position where one cannot be confident that police decisions aren’t distorted by their membership of those schemes. For instance, how can women arguing for single sex spaces facing a demonstration by those demanding they include transwomen have confidence in policing of such a demo by police trained by those arguing the latter and turning up in a car painted in Stonewall colours? How can someone objecting to a potential breach of PACE be confident that they won’t be unfairly charged with a hate crime or have a non-crime hate incident recorded against their name if the police force has signed up to guidance permitting this? 

How can one have confidence that the police – or other public authorities (see, for instance, the latest furore over the withdrawal of an Arts Council grant to a lesbian organisation opposed by Stonewall) – will not, in part (maybe unconsciously), be influenced by their desire to please Stonewall? One can’t. There is a clear conflict of interest. There is certainly a perception of one. The police should never have allowed this to arise. Nor should other public authorities. Or private bodies, for that matter. But at least there we have a choice. We do not with state bodies.

It is long past the time for them to stop outsourcing their thinking to – and seeking to comply with the requirements of – lobby groups. If such bodies won’t act, the government should intervene. Conflicts of interest are the sine qua non of all scandals. This one is no longer even hiding in plain sight.

Chesterton’s Fence

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

“Lessons will be learnt”. How often do we hear this? If only. Lessons are not learnt: not by those who should learn them; not enough to prevent similar problems happening again.

Why?

1.      The memory hole

If a few years ago, who remembers the investigation or report? Or that it might contain something relevant now? Gavin Williamson resigned over bullying allegations against MPs and civil servants. But no commentator mentioned the 2018 Dame Laura Cox report[1] into bullying within Parliament. It was promptly buried with no action taken. So here we are. Again.

2.      This time it’s different

The 4 most dangerous words in the English language. Not true and too often an excuse for ignoring lessons painfully learnt.

3.      Defining the question to get the answer you want

See Credit Suisse in trouble over Archegos[2], a fund run by a man who, when running a different fund, was convicted for insider dealing. How did they get themselves comfortable? Well, by saying this was a different legal entity thus ignoring the character, history of the man in charge and the risks this posed.

4.      La-la-la: I’m not listening. Or asking. Denying evidence, not making inquiries so as to 

avoid getting inconvenient answers, refusing to listen to those raising concerns, retaliating 

against whistleblowers are all too common. Believing what fits with your preconceived

opinions commoner still. As is dismissing concerns as a “moral panic”.

5.      Groupthink: With the latest fashionable cause, it becomes easy to ignore those asking 

difficult questions or challenging the proposals. Easier to go with the flow than be a member

of the awkward squad, especially if retaliation is feared or threatened[3].

Remarkably, the Scottish government has taken all of these routes in its response to those asking questions about the GRR Bill. Consider this by Shona Robison earlier this year –

“There is no evidence that predatory and abusive men have ever had to

pretend to be anything else to carry out abusive and predatory behaviour.”

She went on –

“The evidence is critical in relation to this issue.” 

Indeed. It is. She clarified –

“If we look at the evidence, the threat to women and girls comes from 

predatory and abusive men, not the trans community.”

Note the assumption that not only is there no crossover between predatory, abusive men and those claiming to be trans but there can never be such a crossover.

Still, no evidence? Really? Let’s be kind and accept she was only referring to those countries which had brought in self-ID as planned for Scotland. The Scottish government is always keen to emphasise how in line with international best practice it is. So it must surely have looked at what the evidence actually showed. Yes? Alas, no – as seen in this summary of the international position by MurrayBlackburnMackenzie[4].

It’s worth noting: 

(1)     the Scottish government has admitted that it has not found or done any research on the 

impact of self-ID laws on women in these other countries[5]. Always easiest to claim there is 

no evidence if you don’t bother looking for it, of course.

(2)     In fact, there is evidence of significant problems affecting women, for instance, men ID’ing as women to obtain access to women in places such as prison. In Canada, the US, even Argentina where self-ID was first enacted in 2012.

Let’s look more widely. Is there any evidence in, say, the UK of abusive men pretending to be something else in order to abuse? Or using the cover of something fashionable or respected to carry out abuse? 

–      A celebrity famous for his charitable activities, say? Why, yes: see Jimmy Savile. 

–      Or an inspirational Olympic-winning swimming coach? Yes again – see George Gibney[6], one of many male sports coaches abusing those entrusted to their care. 

–      What about the 19 IICSA Investigation Reports[7] into the multiple ways in which men abused their positions as priests, teachers, social workers, foster carers, sports coaches and so on to harm the vulnerable? An unbearable amount of evidence there.

–      Too long ago, maybe? Well, in the last week the HMICFRS Report[8] into the police has detailed how predatory men have become policemen, using that position to abuse women, girls and children.

–      What about Scotland? How about convicted sex offenders abusing loopholes allowing them to change their identity[9], the essence of the proposed GRR Bill? Yes, this has happened. 

–     Or England? How about someone seeking to dupe a women’s refuge into letting a paedophile who claimed to be transto stay there for 71 days[10]. Again, yes.

But these abusers are not from the trans community, might be the reply. Alas, there is evidence of men claiming to be trans and using that claim to gain access to victims[11]. Or to abuse victims then claim to be trans to avoid or mitigate punishment or gain access to women’s prisons where more victims may be found[12].

What is not yet known – or not with great clarity – is whether those men who are either diagnosed with gender dysphoria or claim to be trans without such a diagnosis have the same rate and type of offending as other men or a higher or lower rate. Getting and understanding such evidence is surely essential before anyone can say that the “trans” community (however defined) poses no risk. Of that, however, there is no sign.

The scale of abuse by male predators is hard to assess. Not all is reported. But that there is overwhelming evidence, accumulated over decades – about how predators operate, how they gravitate to places where victims are found, how they put themselves in positions where it is hard for them to be challenged, how loopholes are abused, opportunities exploited – is undeniable. There is no sector, class, place or profession where it does not happen. There is no group of people immune from being predators. There is no basis for saying that men who are or claim to be trans cannot be – and are not – abusers.

Two facts are clear: overwhelmingly, sexual predators are men; overwhelmingly, their victims are females. The burden is surely on those proposing a reform allowing any man over 16 to change gender purely on his say-so to show why – and how – it will not be abused or exploited by those claiming to be trans.

Two arguments are often used by the reform’s defenders. 

(1)     Equating trans people with predators is unfair and offensive. 

It is no better than those who, opposed to gay rights, claimed that gay men were paedophiles. 

Current concerns are another unjustifiable moral panic. 

A strawman. It is not that trans people are abusers by definition. Of course, they aren’t. Rather, there will be abusers claiming to be trans in order to commit crimes or otherwise gain some advantage. It is they who are being unfair to trans people by using them as cover to exploit the opportunities the reformers will enable[13].

Second, see what IICSA’s final report says: allegations of a moral panic about child abuse allowed a culture of denial of what was happening, giving cover to abusers[14]. There were instances of paedophiles who used councils’ desire to increase “diversity” to get jobs where they could abuse children, jobs they would not have got had there been proper due diligence and a focus on what mattered – safeguarding[15].

The same point was made in last week’s report on the police. The recommendations of previous reports were ignored, the police were largely in denial about the problems, when women officers reported concerns they were not taken seriously, other considerations prevailed and risk assessment was poor. As the Chief Inspector wrote: “The police must be much more sceptical of those who want to wear the uniform.” [16]

(2)     “Ah, but men don’t need to use self-Id to carry out abuse” , say the reform’s defenders. 

After all, these crimes were committed before self-ID is even legally blessed. Well, not quite 

true. But how does that help? If men have already been claiming to be women in order to

commit crimes, avoid punishment or get a lighter regime, why wouldn’t that increase once

self-ID is enshrined in law, with the legal consequences the Scottish government is right now

claiming before the courts?[17] It is not just the police who need to be “much more sceptical”.

This rebuttal misses the point. Of course, predators don’t need self-ID to commit abuse. Sexual predators don’t needto become teachers, priests, sports coaches, entertainers, charity workers or anything else, either. But they do. 

The key questions – those the Scottish government has carefully avoided asking – are:

–        Are there risks that this reform – and how it is enacted – could be abused?

–        How great are those risks? 

–        What are the consequences and for whom, if the risks are realised?

–        Does it prevent or limit challenge, an essential safeguarding requirement?

–        Can the risks be mitigated or eliminated? If so, how?

–        If they can’t, should the reform go ahead at all or in its current form?

Three important lessons from previous reports are these: 

(1)     Boundaries matter – whether physical, safeguarding procedures, vetting, due diligence, 

processes, legal requirements, conditions to be complied with, verifications or, in Matt Parr’s

words, “scepticism” about why someone wants to join a particular group. 

(2)     Ignoring previous reports, recommendations and evidence will make problems much

 worse.

(3)     Scandals happen when those boundaries are abolished, ignored, weakened or seen as

secondary to some more important purpose: “diversity”, for instance, or the reputation of an

institution or group, when challenge is made unacceptable. 

In Chesterton’s words – in their haste to remove the fence, people forget why the fence is needed. 

The final IICSA report says that years ago child abuse was not perhaps as well understood as now. It is not much of an excuse for behaviour which even then was wrong. But it may explain why it was not taken seriously as it should have been. The same can also be said of violence against women. 

There is no such excuse now. It is unconscionable for the Scottish government to ignore evidence, to refuse to listen to women who have suffered abuse[18], to refuse to acknowledge the possibility of risks let alone assess them, to take no steps to mitigate them, not to do the necessary research, to assert what they would like to be true rather than engage and explain. 

If it continues to ignore the lessons of previous scandals and repeat the same mistakes, then the dismal cycle of harm to the vulnerable, scandal, outrage, investigation, report, apology and promises to learn those lessons will inevitably be repeated. This is bad law and even worse governance. Above all, it is an abdication of responsibility those in public office have to citizens, especially the most vulnerable.

[1]  The report can be found here – https://www.parliament.uk/globalassets/documents/Conduct-in-Parliament/dame-laura-cox-independent-inquiry-report.pdf

[2]  See https://barry-walsh.co.uk/same-old-same-old/

[3] See the First Minister’s response to the resignation of Ash Regan. And the decision by 8 SNP MSPs not to vote for or abstain on the GRR Bill.

[4] https://murrayblackburnmackenzie.org/2021/09/08/gender-recognition-reform-and-international-developments/

[5]  See https://archive2021.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-26950&ResultsPerPage=10

[6]  https://www.bbc.co.uk/sounds/brand/p08njhrm – this podcast details Gibney’s crimes over decades and their impact on his victims.

[7] The reports can be found here – https://www.iicsa.org.uk

[8] See https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/

[9] See https://www.scottishdailyexpress.co.uk/news/politics/snp-ministers-urged-close-sex-28360507

[10] See https://www.thesun.ie/news/9679107/transgender-paedophile-duped-staff-domestic-violence-refuge/

[11] See https://transcrimeuk.com

[12] See https://www.scottishdailyexpress.co.uk/news/scottish-news/male-prisoners-changing-gender-under-28149343

[13] Chapter 4 of the 2018 Morgan report on Islington Council is illuminating on how abusers seek to piggy-back on more respectable organisations, to the reputational detriment of the latter. See https://www.islington.gov.uk/-/media/sharepoint-lists/public-records/communications/information/adviceandinformation/20182019/20181107sarahmorganqcreviewreport.pdf.

[14] See the Background and Context section of IICSA’s Final Report’s Executive Summary: “The notion that child sexual abuse was ‘not harmful’ persisted into the 1990s and, in some professional spheres, responses to it were seen as ‘over zealous’ and characterised as a ‘moral panic’.” 

[15] See the 1994 White Report (https://islingtonsurvivorsnetwork2.files.wordpress.com/2021/03/the-white-report-redacted.pdf) and the 2018 report by Sarah Morgan QC on Islington Council (footnote 12)

[16] See the Times article by the Chief Inspector of the Police, Matt Parr – https://www.thetimes.co.uk/article/matt-parr-trust-is-badly-damaged-but-not-beyond-repair-z09gd56r3

[17] See the current judicial review by ForWomenScotland against the Scottish Government – https://forwomen.scot/18/07/2022/judicial-review-2/

[18] See https://www.lbc.co.uk/news/women-survivors-of-male-violence-brand-msps-refusal-to-hear-them-a-kick-in-the-t/

Graham Norton and the Chamber of Chilling Effects

Last week, Graham Norton was asked in an interview about “cancel culture.” He was unequivocal:

“You read a lot of articles in papers, by people complaining about cancel culture. And you think, “in what world are you cancelled? I’m reading your article in a newspaper or you’re doing articles about how terrible it is to be cancelled, so you know – I think the word is the wrong word. I think the word should be “accountability.” You know John Cleese has been very public recently, complaining about this, and it must be very hard to be a man of a certain age who’s been able to say whatever he likes for years, and now suddenly there’s some accountability. You know, it’s free speech but not consequence free.”

The interviewer then asked him about JK Rowling, specifically referencing the “deluge of anger, rage and attempts at censorship which seem to me to be more than a middle-aged man not being able to say something he used to say in the days of empire.” 

He was somewhat more nuanced about this, perhaps recognising – rightly – that whatever he said about cancel culture in respect of JK Rowling was going to be assumed to be a contribution to the debate on sex and gender:

“When I’m asked about it, I become part of this discussion, and all I’m painfully aware of is that my voice adds nothing to that discussion and I’m sort of embarrassed I’m drawn into it. And if you want to shine a light on those issues, talk to trans people, the parents of trans kids, doctors, psychiatrists, someone who can illuminate this in some way. As “bloke off the telly” your voice can be artificially amplified… and most of the time that’s a distraction, and it’s just it’s for clicks, for whatever, to put my name in a headline. “Graham Norton slams,” – “Graham Norton defends“ – “Graham Norton weighs in on” and actually Graham Norton shouldn’t be in your headline. If you want to talk about something then talk about the thing, you don’t need to attach a Kardashian or a whatever to a serious subject, the subject should be enough in itself. You know, it’s the Michael Gove thing about experts, we’ve got enough experts. No, please, can we have some MORE experts. Can we rustle up some f*cking experts and talk to them. Rather than ‘man in shiny pink suit.’” 

Perhaps unsurprisingly, this second point was taken up with less vigour than the first. There has been a persistent analysis from genderists that women (and a few men) who are hounded online or in person for expressing feminist views are experiencing only “accountability” or “consequences,” no matter how grave the threats or how significant the involvement of state bodies (more on this later). This analyis causes understandable anger among those who have been on the receiving end of serious threats. JK Rowling was one of a number to make the point, causing the spotlight to swing back to Norton himself. In particular, his previous attitude towards vulnerable women attracted attention. Norton, now himself the victim of a Twitter pile-on – or “consequences” as he might put it – deleted his Twitter account. 

Legal Feminist is in favour of free speech and deplores attacks on anyone for the lawful expression of their  views. But it does rather illustrate the difficulty with the amplifying effect of social media on freedom of expression, and that brings us to 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.
  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 argument propounded by Graham Norton is that if one person has the freedom to hold and express her opinion, another has an equal and opposite freedom to impose “consequences” in the form of her own expression of opinion. And where this means that people put forward impassioned arguments from diametrically opposing viewpoints, this is true. Where one person puts forward a well reasoned argument and another replies “lol r u stupid” it is also true. Where it fails is where “consequences” is used in the manner of a headteacher scolding an unruly class – where it means punishment, not disagreement – and where this has a dissuasive effect on others participating in a free exchange of views.

The European Court has long recognised the concept of the “chilling effect” in Article 10 cases. What this means is that where one person suffers serious adverse consequences of their otherwise lawful free speech, others will be dissuaded from following suit. 

There are some examples of gender critical speech in which plainly the state has interfered, or where a classical “chilling effect” of state involvement can be seen in the form of criminal proceedings or the threat of it. An obvious example is that of “Harry the Owl,” aka Harry Miller of Fair Cop, who was expressly found by the High Court and the Court of Appeal to have encountered exactly that chilling effect when he was visited by a police officer to ‘check his thinking.’ The co-option of the state authorities, with the threat of prosecution or recording of a hate ‘incident,’ would undoubtedly have such an effect on others considering contributing similar thoughts to a discussion. 

Typically, chilling effect cases are ones in which the state is involved or implicitly involved in the silencing of a particular view. Other cases aside from Miller which fall within the same category might include the prosecution of Kate Scottow (whose expression of opinion was held to be lawful speech within the meaning of Article 10) and the requirement that Maria McLachlan, herself a victim of a battery, must refer to her male assailant in court using a female pronoun. 

Generally, human rights (save in particular circumstances which are not the focus of this blog) have a vertical, not a horizontal, effect – which means that it is the state prohibited from interfering with the rights of the individual, not individuals prohibited from interfering with one another’s rights. However, the state may have a ‘positive obligation’ to prevent interference with freedom of expression. There is precedent in the case of Fuentes Bobo v Spain 39293/98  that an Article 10 infringement may be found where an employee was dismissed for ‘offensive’ remarks. The Court held that the State has a positive obligation to protect the right of freedom of expression – which meant not just that the State must not interfere with the right to freedom of expression, but that it must actively use its powers to support it. (For more on positive obligations, p50 of the Handbook On Positive Obligations is instructive.) 

In light of Fuentes-Bobo I think it is plainly arguable that the same must apply where the state has failed to take action against online vigilantes. If the state is indifferent to rape or death threats that amount to a criminal offence (malicious communications) and women who express an unpopular view recieve such threats, it is of little value to describe those threats as consequences. Pausing briefly to note that Graham Norton did at least try to distinguish between disagreement (“accountability”) and a deluge of threats and censorship (he swerved the question and moved onto whether any celebrity should contribute to the discussion), it is nevertheless true that women online DO receive these threats, and that the state seems unwilling to investigate or prosecute the people making them, or to take effective measures to compel social media providers to deal with them. If the ‘consequence’ to a well known individual contributing a gender critical view is a deluge of rape and death threats, the chilling effect on everyone else is obvious. That she may later be able to write about her experience is irrelevant: the chilling effect occurs when another woman, finger poised above her keyboard, hits delete instead of tweet. 

At present, the chilling effect on gender critical speech is obvious. Prof. Stock and Maya Forstater lost their jobs. JK Rowling has received enough threats, she says, to paper her house. Harry Miller’s case expressly referenced the chilling effect. A number of women including Kate Scottow (convicted and overturned on appeal) and Caroline Farrow (as yet not convicted, but her critic(s) are working on it) have been prosecuted or threatened with prosecution. Genderists are reluctantly accepting that gender critical views are protected, but maintain that expressing them is forbidden (it is not).

But it is not just gender critical speech which is under threat – there are many views from Brexit to Scottish independence to abortion rights to hijabs on which there will be multiple, opposing views. We have a historically unique situation in which an individual’s ability to express a view has never been more capable of broadcast, and in which the most chilling effect no longer comes actively from the state, but from the moral permission granted to the most censorious and most threatening of the online witch-finders. The state must grapple with this, and soon. You do not have to agree with a viewpoint to recognise that it falls within the parameters of freedom of expression. And as Graham Norton has just discovered, “consequences” is a blandly poor descriptor of a chilling effect.

Identifying Coercive Control in the Courts

The BBC reported today that new research from Manchester Metropolitan University shows a strong link between coercive control and murder. This echoes the research done by Professor Jane Monckton-Smith in her book In Control: Dangerous Relationships and How They End in Murder. 

It is probably no surprise, at least to feminists who follow such research closely, that abusers sometimes escalate to femicide. 

The question is what can be done about it – and why legal remedies are struggling to improve the figure of roughly 100 women a year murdered by an abusive partner or ex partner. 

Both the criminal and family courts have found it difficult to draw a bright line between behaviour that is unpleasant or intolerable and behaviour that is coercive and controlling. 

As  Peter Jackson LJ commented in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 at paragraph 61:

“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ 

This was the approach echoed by Hayden J in F v M [2021] EWFC 4 at para 4:

“…In the Family Court, that expression [‘coercive and controlling behaviour’] is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.”

In the criminal sphere, a similar description is offered to prosecutors in guidance. 

There is of course a definition of the offence, provided s.76 Serious Crime Act 2015. The CPS guidance explains that a person will be guilty of the offence of coercive control in the following circumstances:

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are ‘personally connected’ if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together and have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).

The guidance goes on to say that “For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.”

In the criminal court, the offence must be proved beyond reasonable doubt. Where the allegation is made in a family court, the pattern of behaviour must be proved on the balance of probabilities. 

It is readily apparent that it will be difficult in very many cases to draw a line between “bad behaviour” and “coercive control.” 

One complicating factor could well be the expectations of the judge or jury as to the victim’s response. Some women will respond to controlling or coercive behaviour by becoming meek, withdrawn, and afraid – the “freeze” response. Others will respond to violence with retaliatory violence or angry outbursts – the “fight” response. Perpetrators may provoke such a reaction and then accuse their victims of being the ones engaging in coercive control, a pattern known as DARVO (Deny, Attack, Reverse Victim and Offender). The courts must be alive to unexpected reactions from victims: just because she has shouted at him to “fuck off” after months of belittlement or financial abuse doesn’t mean that “she gave as good as she got” and that her sense of autonomy must therefore be intact. 

There are no easy answers to how coercive control is identified, but early intervention would save lives. Education on identifying and preventing it, for prospective victims and prospective perpetrators, as well as those living in abusive homes, should begin in PHSE in adolescence rather than waiting for abuse to occur, when the post-mortem on events may tragically not be metaphorical.

Prison Allocation: How Is It Done?

On 8 September 2022 the Daily Mail reported that Sally Dixon, convicted of multiple sex offences against children between 1989 and 1996, had been sentenced to two consecutive nine year terms to be served in the women’s prison estate. This information was newsworthy because Sally Dixon was born male, committed those offences as a male and, as no Gender Recognition Certificate has been issued, remains legally as well as biologically male. 

Dixon will reportedly go to HMP Bronzefield, a women’s prison and young offender institution. Bronzefield also has a mother and baby unit, accommodating babies up to 18 months with their mothers. 

The Mail reported that it was the judge who sent Dixon to a women’s prison, which is wrong. A sentencing judge determines the sentence, but has no role in deciding where it will be served.

The rules on how this is managed are set out within the Ministry of Justice’s policy on The Care and Management of Individuals Who Are Transgender. 

When a transgender prisoner is identified, a Local Case Board is convened. If the issue is relatively simple (e.g. a female prisoner who identifies as male or non binary but has no GRC and wants to stay in the female estate) then the Local Case Board will complete the process. However if it is more complicated then a referral will be made to a Complex Case Board. This includes cases where someone wants to be placed in the estate of the opposite sex, as has happened here. 

The reader may initially be relieved to hear that the policy claims that “Decisions are free from bias, follow a clear, recorded process and are undertaken by staff who have a sound basic awareness of transgender identity.” The footnote mutters that this sound basic awareness is gleaned from an online e-learning module.

So what is the basis on which the decisions are made? The risks presented both to and by the transgender prisoner must be considered, as well as the prisoner’s own views. It is not the case that the prisoner gets a free choice, nor that a judge has magical dispensing powers. 

The policy provides: 

Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody as set out below19.

Potential risks to the individual from others, or personal vulnerabilities of the individual, related to: (*indicates critical factors)

*Mental health and personality disorder;

*History of self-harm;

*Anatomy, including risk of sexual or violent assault

*Testimony from the individual about a sense of vulnerability, e.g. in a male
environment, in a particular prison, or from a particular prisoner or group of other prisoners;

*Risk of suicide;

*Medication including the absence of medication and the impact of known side effects

*History of being attacked, bullied or victimised;

*Intelligence including evidence of coercion, manipulation, or threats towards the individual

Family circumstances/relationships

Age

Physical health

Learning disabilities or difficulties.

Potential risks presented by the individual to others in custody and an AP related to: (*indicates critical factors)

*Offending history, including index offence, past convictions and intelligence of potential criminal activity- e.g. credible accusations.

*Anatomy, including considerations of physical strength and genitalia;

* Sexual behaviours and relationships within custodial/residential settings;

*Use of medication relating to gender reassignment; and use of medication generally;

*Past behaviour in custody, the community, in the care of the police, or in the care of prisoner escort services;

*Intelligence reports;

*Evidence of threats towards others;

*Mental health and personality disorder;

Learning disabilities or difficulties;

Substance misuse.

Views/characteristics of the individual: (*indicates critical factors)
*Birth, legal and presented gender;

*Strength of confirmation of presented gender, including medical treatments and full
evidence of gender identity (such birth certificate, or a GRC)

*View on establishment allocation, prison management and lifestyle.

4.19  Whilst the view of the individual on location should always be taken into account, this view must be put into the context of any risks that may be posed to the individual by others (including the risk that they could be threatened or manipulated into giving that view) and the risk that could be posed by the individual to others, whether in the men’s or the women’s estate.

This was the policy that was  unsuccessfully challenged in R (FDJ) v SSJ [2021] EWHC 1746 (Admin). The court was careful to set out its parameters: it was assessing the lawfulness, not the desirability, of the policy [para 72]. On the subject of the Case Boards, the court held: 

“The LCBs and CCBs are expert multi-disciplinary panels. Their members are the persons best placed to assess the risks, and determine the appropriate management of those risks, in a particular case. Those members will surely be well aware of the vulnerabilities of the women who are held in the female prison estate, and of the fear and anxiety which some of them will suffer if a transgender woman, particularly one with male genitalia and/or with a history of sexual or violent offending against women, is accommodated in the same prison. The members are expressly required by the Care and Management Policy[2] to take into account – amongst other relevant factors – the offending history of the transgender woman concerned; the “anatomy, including considerations of physical strength and genitalia” of that person; and the sexual behaviours and relationships of that person. They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”

In other words, the LCB and CCB must consider the offending history of the prisoner in question when coming to their decision. They are not allowed to ignore it. 

One can perhaps see how a panel might reach the view it did in Dixon’s case. Transition here had begun in 2004 – after the offending period but many years before prosecution –  which suggests the transition was not a cynical attempt to game the system. The panel is entitled to take into account the nature of the offence, but would have to set against that that the last known offending was 1996. Intelligence as to ongoing offending can be taken into account. Sexual offending is notoriously hard to rehabilitate, but it seems unlikely that a panel would infer that there was a present risk simply from the nature of the offending if the last known or even suspected offending was quarter of a century earlier. Add to that the fact that the “risks to” Dixon  included a history of being attacked, bullied or victimised: former friends were reported as having embarked on a course of harassment for which they were sentenced in 2016. 

All of this leads to a wholly unsatisfactory situation in which a person biologically and legally male, with a history of repeated sexual offending, imprisoned for sexual offending, is nevertheless assessed as presenting an acceptable level of risk to female prisoners. Dixon may not present a significant risk to the women in prison in terms of future offending. But there remains the fact that members of the female prison population are  disproportionately likely to have suffered childhood sexual abuse and other forms of male violence. At best, requiring them to share accommodation with a male who has committed Dixon’s crimes is unlikely to do anything to assist their recovery or  rehabilitation, or with restoring their fragile trust in a system which, too often, has already failed them again and again.

As was highlighted in FDJ [para 82] the policy does not require the LCB or CCB to take into account the “the vulnerability of women prisoners, their frequent experiences of sexual assaults and domestic violence, and the fear and anxiety they may experience as a result of sharing accommodation and facilities with transgender women.”  Lawful though the policy is, it demonstrates an asymmetry which underpins the assumption that the integration of transwomen with women in the prisons’ estate is a desirable objective. Certainly this was the starting point of the court in FDJ. It is, in our view, profoundly sexist but, for good or ill, not all sexism is actionable.

Obviously women prisoners do not have to be assessed in the same way. But if a similar checklist were applied to them, the panels would be reminded of the practical context of their decisions, and be less susceptible to the inequity of awarding primacy to the psychological comfort of male born prisoners over the psychological, physical and sexual safety of women. 

Perhaps it is time that the policy began to require consideration of the vulnerability of women prisoners.

What Finance Can Tell Us About the Trans Self-ID Debate

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

Financial scandals have the same features and failings occurring, repeatedly. What is concerning is to see these in a very different setting: the debate over trans self-ID, specifically, the Scottish government’s proposed GRA reforms.

Financial Lessons

At the heart of all scandals are conflicts of interest and self-delusion: believing what you want to be true and fitting facts to your belief.

The City’s 1987 Big Bang abolished restrictive barriers to facilitate competition. What this ignored was the resulting creation of ever larger financial institutions, creating multiple conflicts of interest between institutions, their clients, between clients and between different business areas. Internal Chinese walls tried to manage those conflicts. Self-regulation and — post the Guinness, Maxwell and Barings scandals — light-touch regulation were meant to do the rest. They did not work.

Why? Financiers deluded themselves into believing their own publicity — the myth of “star” traders, that they had discovered a new paradigm which meant that they were now able to manage risk so effectively that they could take more of it on, doing away with previous controls. They thought themselves so essential to the economy they could do pretty much what they liked. Politicians supported them in this delusion because it suited them. Finance lied to itself and others when problems arose: these were the proverbial “one or two” bad apples, not representative, it was unkind to tar everyone else with their brush etc. It did not correctly identify the risks it was running so did not deal with them properly or at all. We are all still paying the consequences (Note 1).

The law was clear enough. But the prevailing culture undermined it. Ethical blindness developed. When law and culture are at odds, it is usually the latter which prevails. Social contagion and conformity are more effective at determining behaviour than the strict letter of the law.

Several dangerous practices resulted:

  1. Rules were pushed to their limits, their spirit and intention ignored. “How do we do this?”, “Find me a way to do this”, “Where does it say I can’t do this?” were the questions asked. Few understood the maxim: “Ask yourself not just whether you can do something. But whether you should.”
  2. Nor was enough attention paid to the next question: “Why?” / “What are the disadvantages/risks?” The latter were either described as insignificant or manageable or, worst of all, said not to exist. Be very wary indeed when someone tells you that there are no disadvantages to a desired course, especially when this comes from those promoting it. The Mandy Rice-Davies dictum applies here.
  3. It became difficult to challenge even when issues arose. In virtually all scandals, there are people who know that something is not right, try to speak up and, if they do so, are ignored. There are other red flags as well, the common factor being that they are usually ignored, minimised or rationalised away. A culture of refusing to listen, of making people scared to challenge or ask “why” will make problems more likely to happen — and likely worse than they need be when they do erupt.
  4. Due diligence and verification were meant to be the way problematic issues could be identified. But too often this was not done properly, was seen as a tick-boxing exercise or its results ignored. So it became easy for bad actors to bypass these controls. “I am who I say I am” is the modus operandi of pretty much every financial fraudster there has ever been. Think of Bernie Madoff. Roger Levitt. Robert Maxwell. Ruja Ignatova, the crypto “Queen”. Markus Braun of Wirecard (Note 2). And not just financial — see Jimmy Savile. What they all also do is make it difficult to check their claims: via obscure accounting, layers of offshore companies, legal threats. Or just making it socially unacceptable to challenge or question.
  5. Conflicts of interest were either left unaddressed or not properly managed. More often it was assumed that the interests of the banks, its staff and its customers, as well as wider society, were one and the same and, indeed, could not be in conflict. The financial sector forgot that it was primarily there to serve others, not itself. The interests of those affected if matters went wrong were not sufficiently taken into account.
  6. More was seen as better. Most financial instruments which led banks into disaster started out as something worthwhile. Credit Default Swaps were originally devised as a means by which banks could minimise their risk i.e., by insuring against a company’s credit-worthiness. Then they came to be seen as products which could be traded very profitably. Rather than minimising risk, they ended up creating huge additional and poorly understood risks.
  7. Not just poorly understood but misdescribed — either because it suited those selling the products or because people had persuaded themselves that they were indeed risk free. But just because something is described as risk free does not make it so. What something is called does not change underlying material reality.

Much has changed in recent years. The focus is on properly identifying, understanding and managing risks, closing loopholes (if one exists it will be used), on trying to avoid the creation of conflicts of interests and, where these are inevitable, managing them properly.

There have been two important changes above all:

  • Creating a culture of speaking up about problems before they become crises to be managed.
  • Understanding that you cannot simply trust but must also verify. The level of verification needed is based on the assessment of the risk to and vulnerability of those affected by any failings. But the requirement is for more verification. Not less. And definitely not none at all.

There will always be bad actors. To think otherwise is naïve. And dangerous. Trying to root them out is playing Whack-A-Mole. But that steps must always be taken to prevent the former operating and risks becoming real are not in doubt.

GRA Reform

The debate is centred on trans people and their human rights, without ever stating what rights are missing. It assumes: (1) anyone should have the right to change gender; (2) only the needs of those wanting to do so are relevant. What is not asked is ask why anyone should. Nor whether everyone should. Nor what the impact on others may be.

The reform removes the requirement for a medical diagnosis (partly because of long delays getting one). Anyone over the age of 16 born or living in Scotland can change gender by making a self-declaration — with no verification of any kind. This is presented as a simple upgrade rather than a fundamental recasting making it something very different. (It is the equivalent of turning an obscure product designed for a limited purpose into a highly risky instrument traded by those whose motives may be self-serving or malicious.)

It repeats finance’s most serious mistakes:

  • Creating a loophole and an unmanageable conflict of interest by short-circuiting the process.
  • Abandoning any verification. The assumption is that no-one will ever lie or act maliciously or misuse the process for an unintended purpose.
  • Believing that a favoured group can be automatically trusted and allowed to behave freely without any controls.

Both of these are dangerously misguided, unsafe assumptions which do not survive a moment’s contact with reality.

  • Stating what you would like to be true (“Transwomen are women”) and assuming that changing a description changes reality. A man calling himself a woman but with a male body is self-evidently not the same as a woman with a female body. Legal nomenclature says nothing useful about risk.
  • Convincing yourself that there are no or few risks and so not identifying them accurately and ignoring or minimising any evidence or concerns suggesting otherwise.
  • Not assessing the impact on those likely to be harmed if matters go wrong.

The consequences are similar:

  • Substituting one value at the expense of others, equally important. The City’s “golden goose” revenues were extremely attractive. The costs of its behaviour, costs now being paid, were ignored. Now “inclusivity” is all important, with little regard for who might be included and who might thereby be or feel excluded. Safeguarding — which necessitates excluding some by discriminating on the basis of risk — is undermined.
  • Challenge and scrutiny are not only not encouraged but viewed with distaste and alarm. See Ms Sturgeon’s statement that objections are “not valid” — even before any consultation process has started. Seeking to rely on existing legal single sex exemptions is seen as offensive, phobic or bigoted. How they are to be preserved if self-ID happens is not explained.
  • The possible impact on others is not considered. Gender reassignment does not require surgical intervention. Since it will be available to any man or boy older than 16 virtually on demand, it means that there will be men legally treated as women retaining all the physical attributes of men. Since no verification that such men have dysphoria will be needed, any risk assessment should assume that the process could be used by those without dysphoria or with malicious aims.
  • This has not been done. The impact on women and girls as a class in the round is simply not considered. The risks are hand waved away; any evidence of risks (Note 3) or current research into what the risks might be are ignored or misinterpreted (Note 4).
  • Instead, the Scottish government announces that such risks cannot exist. See Shona Robison, MSP and Equalities Minister responsible for the proposed Bill in Holyrood on 3 March 2022:

“There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.”

This is an extraordinarily ignorant statement. If there is one thing we know about sexual predators, it is that they will use whatever loopholes and opportunities exist, including pretending to be what they are not. Ample evidence confirms this (Note 5).

This statement is a classic example of saying what you want to be true, what you have to believe to justify what you want to do. It assumes both that trans people, as a group cannot, by definition, contain bad actors and that bad actors will never abuse a loophole or pretend to be something they aren’t. It is not a statement of fact. But of belief. It is self-delusion on a colossal scale.

This self-delusion — both about the nature of the reform and the absence of risks arising from it — bakes dishonesty from the start into the proposal and consultation process. That lack of honesty — about what you are doing, about the harm that has been caused and the potential risks, about the need to balance the rights of different groups, about the need to protect the most vulnerable if matters go wrong — means that, eventually, just as in finance, problems will arise.

But their cost will not be counted in money but in real harm to women.

Notes

Note 1: For a fuller description of City behaviour see http://www2.politicalbetting.com/index.php/archives/2017/01/20/cyclefree-asks-are-banks-the-new-unions/

Note 2: The FT’s account of the Wirecard scandal is riveting: an example of a fraud, whistleblowers and the extraordinary legal and other lengths the fraudsters went to to stop the FT’s investigation, aided by the German regulators who did not want to believe that their “superstar” digital bank was less than it seemed.

Note 3: The Cass Independent Review of Gender Identity Services for Children and Young People is at Cass Review — Independent Review of Gender Identity Services for Children and Young People (independent-review.uk). Its interim report was published on 10 March 2022.

Or see https://www.thetimes.co.uk/article/sex-offenders-free-to-abuse-children-after-changing-id-bpdlx59p0.

See also paragraphs 13 and 14 of the High Court judgment on the lawfulness of the policy allowing transgender women convicted of sexual or violent offences against women to be housed in a women’s prison — https://www.bailii.crg-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2021/1746.html&query=(4198/2019. This sets out the information as at 2019 as provided by the Ministry of Justice.

Note 4: See the submission to Parliament’s Women’s Equality Committee about Swedish research into offending patterns in transgender women prisoners who have surgically transitioned — https://committtees.parliament.uk/writtenevidence/18973/pdf/

Note 5: See IICSA reports — Reports & recommendations | IICSA Independent Inquiry into Child Sexual Abuse

The new interim version of the Equal Treatment Bench Book:

A significant step forward in its guidance on ‘Trans People’, but a long way still to go

A Guest Blog By Maureen OHara. She is a legal academic and former solicitor, who is doing research into the impact on women’s rights of the adoption of gender identity theory by criminal justice agencies

In December 2021 a new interim version of the Judicial College’s Equal Treatment Bench Book (ETBB) was published. Its guidance on ‘Trans People’ in chapter 12 includes significant amendments which take account of some of the criticisms of earlier versions made by gender critical feminists and lawyers.

These criticisms relate to broadly four areas, which are compulsion in relation to the use of the preferred pronouns and modes of address of trans-identifying parties to court proceedings; the adoption of tenets of gender identity theory as if they were fact; the implementation of self- definition of ‘gender identity’ in court proceedings; and the lack of transparency about who contributes to the ETBB’s content. Some of these criticisms have been partially addressed in the new version of the ETBB, while others have not.

In August 2021 a group of practising lawyers and legal academics wrote to the Lord Chief Justice expressing concerns about the previous ETBB guidance. The Lord Chief Justice passed our letter to the ETBB’s Editorial Panel for consideration. The text of the letter set out below. Some signatories’ names have been removed because they did not want them made public.

The revised version of the ETBB has taken on board some of the concerns the letter raised, particularly in relation to the treatment of witnesses giving evidence about their experiences of sexual and domestic violence.

In relation to the use of preferred pronouns, the previous version of the ETBB, published in February 2021, stated:

‘‘It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns. Everyone is entitled to respect for their gender identity, private life and personal dignity.’’ (p. 325)

Neither the February 2021 version of the ETBB nor previous versions which included this requirement, provided any guidance about how it should be implemented in practice in relation to witnesses other than those who identify as transgender, or about how judges should treat witnesses who perceive defendants in terms of their sex rather than their ‘gender identity’.

Some judges interpreted the guidance as requiring them to compel witnesses to use the preferred pronouns of defendants and other parties to proceedings who identify as transgender. This had particularly serious implications for witnesses who were giving evidence about traumatic events, such as being subjected to physical and sexual violence. Previous versions of ETBB did not address the impact on these witnesses of being required to describe a defendant in criminal proceedings, or an alleged perpetrator of domestic abuse in family proceedings, in ways which amount to a denial of their own perceptions of reality. The potential impact of the earlier guidance on complainants in criminal trials is discussed in this journal article which I wrote in 2019.

This account of being instructed by a judge to use a defendant’s preferred pronouns was given by Maria MacLachlan, who was assaulted in 2017. One of her attackers, Tara Wolf, who self-defined as a ‘trans woman’, was convicted of assault by beating in April 2018.

The revised ETBB recognises for the first time that witnesses have a right to refer to trans-identifying people using pronouns which align with their biological sex, and acknowledges that there may be circumstances where this is required by the interests of justice.

Paragraph 26 of chapter 12 states,

“There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status, clash with the trans person’s right to privacy. It is important to identify such potential difficulties in advance, preferably at a case management [1] stage, but otherwise at the outset of the hearing. A decision would then have to be made regarding how to proceed, bearing in mind factors such as:

…Why the witness is unwilling or unable to give evidence in a way which maintains the trans person’s privacy. For example, a victim of domestic abuse or sexual violence at the hands of a trans person may understandably describe the alleged perpetrator and use pronouns consistent with their gender assigned at birth because that is in accordance with the victim’s experience and perception of the events. Artificial steps such as requiring a victim to modify his/her language to disguise this risks interfering with his/her ability to give evidence of a traumatic event.”

There will be occasions when, after these and other relevant factors have been considered, the interests of justice require that a witness or party may refer to the trans person using their former pronouns or name.”

The guidance then cites the provisions relating to special measures for vulnerable and intimidated witnesses contained in the Youth Justice and Criminal Evidence Act 1999 and Domestic Abuse Act 2021. Previous versions of chapter 12 of the ETBB have not mentioned provisions relating to these groups of witnesses.

This amendment should mean that complainants giving evidence in trials for rape or other sexual offences will not be required to call male defendants ‘she’, and that women giving evidence in family proceedings about their experiences of domestic abuse will not be required to refer to their former male partners as though they were women.

The use of the language of rights in the amendment is significant. While this is an important step forward, many of the problems raised by the ETBB’s general guidance about the use of preferred pronouns are still not addressed in the new version. In practice witnesses’ ability to exercise their right to use pronouns which align with the sex of trans-identified parties to proceedings will be limited by the fact that the ETBB is likely to be interpreted to mean that the judge, the lawyers representing all parties in the proceedings, and perhaps other witnesses, should use preferred pronouns based on self-defined ’gender identity’. The ETBB does not discuss the implications for a witness of calling a trans-identified male ‘he’ while everyone else who speaks in the court room calls that person ‘she’. Where this happens it is likely to confuse and unnerve the witness, who may feel pressurised to use preferred pronouns themselves. This experience is likely to be particularly confusing and distressing for child witnesses and witnesses with learning disabilities.

In criminal proceedings this problem is likely to be compounded in cases where witnesses have already experienced the local police service and the Crown Prosecution Service referring to trans- identified defendants according to their ‘gender identity’ rather than their sex. Research carried out in 2019 by Fair Play for Women found that sixteen police services in England and Wales recorded the sex of suspects and offenders based on self-defined gender. Eight services confirmed in answer to a specific question relating to the offence of rape that they would record the sex of a rape suspect who identifies as transgender as female. In October 2021 it was reported that the Home Secretary intended to end these practices. Whether this will happen remains to be seen. The Crown Prosecution Service also operates a policy of recording the self-defined ‘gender’ of defendants.

In most respects the ETBB guidance makes no distinctions between people who identify as transgender who have obtained a Gender Recognition Certificate which changes their ‘gender’ in law, and those who have not. It has effectively introduced self-definition of ‘gender identity’ into the conduct of court proceedings, despite the fact that self-definition is not aligned with current law. This has not changed in the new guidance.

Another criticism of the previous ETBB was that it was partisan and adopted many of the tenets of gender identity theory as if they were matters of fact rather than opinion. This is discussed in depth in a Policy Exchange publication written in 2021 by Thomas Chacko, who also discusses the approach to self-identification in some detail.

The revised version of the ETBB continues to use language founded in gender identity theory which is widely contested, such as ‘gender assigned at birth’. Arguably, its overall approach remains imbued with gender identity theory, on which the implementation of self-definition of ‘gender identity’ is based.

The revised edition has clearly been influenced by the Employment Appeal Tribunal (EAT) judgment in Forstater https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf v CGD Europe and Ors(2021) in which it was held that gender critical beliefs are protected beliefs under the Equality Act 2010. It is somewhat more even-handed than previous editions, in that it gives a brief explanation of gender-critical beliefs, notes that they are protected, and acknowledges for the first time that there is a debate in this area. However, the ETBB’s framing of the Forstaterjudgment arguably expresses implicit bias.

While it notes that gender critical beliefs are protected, the revised edition does not explicitly state that this is the result of the decision in Forstater, except in its Appendix on the Equality Act. Its only clear reference to the judgment in Forstaterin chapter 12 relates to what the EAT said about ‘misgendering’.

At paragraph 78, the new ETBB states,

“‘Gender-critical’ is a phrase which, broadly speaking, refers to a belief that sex is immutable and binary, and that people cannot transition. Very often it is linked to concerns that allowing the definition of women to include trans women would make the concept of ‘women’ meaningless and undermine protection for vulnerable women and girls. There is also often concern about what is seen as potential encroachment into ‘safe spaces’. Feelings can run very strongly on both sides of this debate. Clearly the ETBB takes no sides on this matter. The ETBB’s concern is simply that judges have some understanding of the perspectives of the variety of litigants and witnesses who appear before them. Gender-critical beliefs (as long as they do not propose for example to destroy the rights of trans people) are protected beliefs even if they might offend or upset trans people (and others). However, holding a belief is different from behaviour. As explained in the well-publicised Forstater case, ‘misgendering’ a trans person on a particular occasion, gratuitously or otherwise, can amount to unlawful harassment in arenas covered by the Equality Act 2010.”

The ETBB omits to note that the EAT reiterated that the position at common law as established in Corbett v Corbett (orse Ashley)[1971] P 83 is that sex is immutable (para.115), and that the Tribunal also stated that,

“…it is relevant to note, and it was not in dispute before us, that the Claimant’s belief is shared by many others.” (para.52)

Forstater is a landmark case in relation to the protection of gender critical beliefs which has significant implications for the treatment of witnesses who are gender critical or who do not share what the EAT in Forstatercalled “gender identity belief” (para.108). Given the significances of this case, a more neutral summary of the EAT’s judgment, and an exploration of its implications in relation to judicial attempts to require witnesses to use the preferred pronouns and modes of address of trans-identified parties in court proceedings, might have been expected.

The ETBB’s introduction of de factoself-definition of ‘gender identity’ happened without public consultation, and the process by which the ETBB guidance is developed is not open to public scrutiny. Melanie Newman reported in the Law Society Gazette in 2020 that the Judicial College had refused to identify the external organisations involved in training and policy formulation in relation to the ETBB. The Judicial College takes the view that it holds information about judicial training on behalf of the judiciary, and therefore this information is not subject to the Freedom of Information Act. Such lack of transparency creates an environment which is vulnerable to policy capture.

The fact that the Panel has considered our letter to the Lord Chief Justice and taken some of its concerns into account is an encouraging sign of increasing openness to a wider range of opinion. Perhaps there is hope that before the next edition of the guidance the Judicial College will develop a more transparent process for producing it.

Letter to the Lord Chief Justice

The Right Honourable

The Lord Chief Justice of England and Wales Royal Courts of Justice

Strand

London

WC2A 2LL

27th August 2021

Dear Lord Chief Justice,

The Judicial College’s Equal Treatment Bench Book

We are a group of practising lawyers and legal academics. We are writing in a personal capacity to express our concerns about the implications for witnesses in both criminal and civil proceedings of the guidance on ‘Trans People’ in chapter 12 of the Judicial College’s Equal Treatment Bench Book.

Judges are interpreting this guidance as requiring them to compel witnesses to use the preferred pronouns of defendants who identify as transgender. We are particularly concerned about the implications of this guidance for adult and child complainants at criminal trials relating to violent and sexual offence, and for parties in family proceedings who are giving evidence about their experiences of domestic abuse.

The Bench Book states,

‘‘It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns.’’ (page 325)

No guidance is given about how this requirement should be carried out in practice in relation to witnesses other than those who identify as transgender, or about how judges should treat witnesses who perceive defendants in terms of their sex rather than their ‘‘gender identity’’. The guidance is written as if the use of a defendant’s preferred pronouns is simply a neutral administrative matter which will have no detrimental effects on witnesses, or on court proceedings.

This has particularly serious implications for witnesses who are giving evidence about traumatic events, such as being subjected to physical and sexual violence. The Bench Book guidance does not address the impact on these witnesses of being required to describe a defendant in criminal proceedings, or an alleged perpetrator of domestic abuse in family proceedings, in ways which amount to a denial of their own perceptions of reality. This is despite the fact that special measures which recognise the particular difficulties which these witnesses may face in giving evidence at court are provided in section 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 in relation to criminal proceedings, and in sections 63 and 64 of the Domestic Abuse Act 2021 in relation to victims of domestic abuse giving evidence in family and other civil proceedings.

The account below was given by Maria MacLachlan, who was assaulted in 2017. One of her attackers, Tara Wolf, who self-defines as a ‘trans woman’, was convicted of assault by beating in April 2018. MacLachlan has stated:

‘‘My experience of court was much worse than the assault…I was asked ‘‘as a matter of courtesy’’ to refer to my assailant as either ‘‘she’’ or the ‘‘defendant’’. I have never been able to think of any of my assailants as women because, at the time of the assault, they all looked and behaved very much like men and I had no idea any of them identified as women… I tried to refer to him as the ‘‘the defendant’’ but using a noun instead of a pronoun is an unnatural way to speak. It was while I was having to relive the assault and answer questions about it while watching it on video that I skipped back to using ‘‘he’’ and earned a rebuke from the judge. I responded that I thought of the defendant ‘‘who is male, as a male’’. The judge never explained why I was expected to be courteous to the person who had assaulted me or why I wasn’t allowed to narrate what had happened from my own perspective, given that I was under oath.’’ (Julie Moss, ‘Interview: Maria MacLachlan on the GRA and the aftermath of her assault at Speakers’ Corner’, Feminist Current, 21 June 2018, https://www.feministcurrent.com/2018/06/21/interview-maria-maclauchlan-gra-aftermath-assault- speakers-corner/)

The authors of the Bench Bookappear not to have considered the inter-action between its guidance and guidance in Achieving Best Evidence in Criminal Proceedings(ABE). ABE states that judges have a responsibility to ensure that all witnesses are enabled to give their best evidence, and that that they must strike a balance under Article 6 of the European Convention on Human Rights between protecting the defendant’s right to a fair trial and ensuring that witnesses are enabled to give evidence to the best of their ability. It requires judges to “…have regard to the reasonable interests of witnesses, particularly those who are in court to give distressing evidence, as they are entitled to be protected from avoidable distress in doing so.’’ (p.134)

The logic of the Bench Bookguidance is that a complainant in a rape trial can be required to call a defendant who has raped her (or him) ‘‘she’’, and to use female possessive pronouns to refer to the defendant’s body parts. This could also apply to child witnesses and vulnerable adult witnesses. The guidance does not consider how a child or an adult with learning disabilities might experience an instruction from an authority figure like a judge to refer to a biological male as ‘‘she’’. The right to accurately describe the sex of those who have assaulted them is crucially important to the ability of victims of violent and sexual offences to report violence and give evidence at court. Compelling witnesses to describe a defendant in ways which amount to a denial of their own perceptions of reality therefore undermines access to justice.

The use of pronouns and forms of address which reflect a person’s ‘gender identity’ rather than their sex is not simply a matter of social courtesy. For many people it is an expression of a political belief with which they profoundly disagree, and which they consider to be harmful to the rights of women, and to society as a whole. The Bench Bookguidance is effectively promoting the imposition of a form of compelled speech, which is an infringement of witnesses’ rights to freedom of thought, conscience and religion, and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights respectively. Both these articles protect the right not to be obliged to manifest beliefs that one does not hold, as stated in the case of Lee v Ashers Baking Co[2018] UKSC 49. The right not to be compelled to express a political belief is well established in the case law of the European Court of Human Rights.

The courts have an obligation to balance the rights of defendants and witnesses in criminal trials, and to balance the rights of parties to civil proceedings. However, the Bench Book guidance prioritises the wishes and feelings of those who identify as transgender and includes no guidance for judges about balancing rights. The use of this guidance potentially impedes witnesses’ ability to give accurate and coherent evidence, particularly where giving evidence requires them to recall traumatic events. This cannot reasonably be said to be a proportionate means of achieving the Bench Book’sstated aims, and therefore its interference with witnesses’ Convention rights is not justified.

The Bench Bookguidance appears to be founded on what the Employment Appeal Tribunal in Forstater v CGD Europe and others(UKEAT/0105/20/JOJ) described as ‘gender identity belief’ (paragraph 108). This is the belief that ‘’everyone has a gender identity which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women’’ (paragraph 107). The Tribunal found that the Claimant’s lack of ‘gender identity belief’ was protected under Article 9 (1) ECHR and therefore within section 10 Equality Act 2010; as was her ‘gender-critical belief’, the core of which is that sex is biologically immutable (paragraphs 14 and 15). The Tribunal noted that this belief is in accordance with the current law (paragraph 115), and is shared by many people (paragraph 52).

The Bench Bookguidance is not aligned with the Gender Recognition Act’s provisions relating to the recognition of ‘gender identity’. It states that,

“It should be possible to recognise a person’s gender identity…for nearly all court and tribunal purposes regardless of whether they have obtained legal recognition of their gender by way of a Gender Recognition Certificate.’’ (page 326)

This effectively introduces self-definition of ‘gender identity’ into the conduct of court proceedings. However, such self-definition has not been incorporated into law in this jurisdiction. Proposals to amend the Gender Recognition Act to incorporate self-definition have been the subject of a public consultation, following which the government decided not to introduce these proposals into law. In advising judges to incorporate self-definition of ‘gender identity’ into the conduct of court proceedings, the Bench Book effectively advises judges to go beyond the law.

The Bench Book’s approach has been introduced without public consultation, and in the absence of any established public consensus. The Law Society Gazette has reported that, when asked to identify the organisations who assisted in the development of this guidance, the Judicial College stated that it was “not in the public interest to make public the names of those involved in this work.’’ (Melanie Newman, ‘Warning over transgender guidance to judges’, The Law Society Gazette, 24 February 2020, https://www.lawgazette.co.uk/news/warning-over-transgender-guidance-to- judges/5103196.article).

We find this lack of transparency about the influences on such an important document very concerning, particularly as the document is not aligned with current law.

There appears to be increasing concern about the Bench Book’s guidance in this area outside of the legal profession, such that the think tank Policy Exchange has recently published a document written by barrister Thomas Chacko which suggests the guidance is in need of urgent revision. We attach a copy of this publication.

We ask that a review of this guidance be conducted with a view to amending it to ensure that it reflects the law, and that it takes account of the obligation to achieve an appropriate balance between the rights of all witnesses in court proceedings.

Yours sincerely,

Rosemary Auchmuty, Professor of Law

Sue Bruce, Solicitor

Thomas Chacko, Barrister

Naomi Cunningham, Barrister

Peter Daly, Solicitor

Eileen Fingleton, Solicitor

Francis Hoar, Barrister

Belinda Lester, Solicitor

Audrey Ludwig, Solicitor

Helen Nettleship, Barrister

Maureen O’Hara, Senior Lecturer in Law

Peter Ramsay, Professor of Criminal Law

Angela Smith, Solicitor

Robert Wintemute, Professor of Human Rights Law

[1]  A case management conference (civil law) or hearing (criminal law) is essentially a meeting which takes place before the main court proceedings between the allocated judge and lawyers for the parties, where decisions are made about various aspects of the conduct of the case. 

Two Key Questions

This article is written about women, but it could also apply to men and male only services.

As many readers will already know, the Equality Act 2010 provides for single sex services, and acknowledges that there will be times when it is reasonable for a service to exclude members of the opposite sex (para 27 Schedule 3) or to exclude on the basis of gender reassignment (para 28 Schedule 3). Evidently, it is not likely to be reasonable when someone is running a greengrocers, but it might well be when they are running a refuge or rape crisis centre and need to retain a recovery space that is female only, for example.

Today, the word “terfs” is trending on Twitter. This seems to have been prompted by a combination of factors, one of which is Margaret Atwood’s retweet of an article deemed unacceptable by the self-appointed terf-finder generals. At the time of writing, Atwood has not yet recanted, but did tweet “Read her piece, she’s not a terf” for which she was met with a barrage of comments insisting that the article did indeed bear the devil’s mark of terfery. 

The “not a terf” comment made me wonder: what IS a terf? Is the existing law a terf? And I think it reduces to these two key questions:

  1. Do you think that women and girls should ever have the right to meet or to access services where there is nobody present who was born male?
  2. If the answer to (1) is no, do you think that there is any stage in a male-born person’s proposed or actual transition where access to women’s spaces should be restricted?

Answering yes to one or both of these questions is in line with the existing law in the UK, which provides that single sex spaces are legal and that exclusion is justified where ‘a proportionate means of achieving a legitimate aim’ – and what is proportionate for someone who has decided in their own mind but not yet taken any physical steps at all towards transition, may not be the same as what is proportionate for someone who has socially and medically transitioned years ago.

Yet watching the terfs hashtag on Twitter, it seems that for the purists, the only available answer to either question is no. If you answer yes to either of them, then welcome to the coven – you may be horrified to learn it, but you too are among the terven. The only distance between us is which services should be restricted and how far along in transition a person should be to access them. 

For those who do, honestly, take the position that the answer to both questions must be no: you are advocating the abolition of single sex or separate sex services altogether, and therefore the abolition of some of the protections available on the basis of sex contained in the Equality Act. Anyone who wishes to advance such an extreme position must be able to formulate a cohesive argument in favour of this drastic legal change. “Shut the fuck up, terf” is not one.

Who Watches the Watchmen?

As a society we expect high standards of those in a position of responsibility. Flick through job adverts for positions in the police, prison service, and so on, and there will be phrases like “applicants must be able to show integrity” and “high personal and professional standards.”  An enhanced DBS check will be carried out, and training offered on expectations.

This rigorous procedure is a necessary element of safeguarding where one person is invested with real power over others. The power to deprive someone else of their liberty is one which should only be afforded to the most trustworthy, for obvious reasons. Responsibility for children is another.

And yet even with an enhanced DBS check, even with the checks and interviews and training and supervision, abusers and predators can slip through the net.

The use of his police powers by Wayne Couzens to kidnap and murder Sarah Everard is graphic and horrifying. But he is not the only police officer involved in abuse of women: at least 15 former or serving police officers have killed women since 2009. Just over this summer, Kevin Bentley (who boasted to victims that his position as a police officer made him “teflon”) was sentenced for 24 sexual assaults and Earling Leask was sentenced for grooming vulnerable women.

Nor are the police the only institution affected. Take for example the case of David Whitfield, a prison officer recently sentenced for demanding sexual favours from female prisoners in exchange for privileges – and in the same month, August 2021, Joshua Whitehead was sentenced for sexual assault while Jordan Jackman was jailed after he used his system access to obtain the personal details of a visitor he thought attractive. These incidents are not vanishingly rare. Clerics, teachers, caretakers and more – no matter how rigorous the checks, a predator who has not (yet) been arrested or convicted can work in these positions of power.

An unrealistic solution perhaps, in light of how many more women would need to be recruited – but if there are no safeguarding checks capable of dealing with an epidemic of violence against women, is it time to amend legislation so that only female police officers have permission to arrest and detain women, and only female prison officers may work in a women’s prison?