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? 

Template Letter to AG re: Sam Pybus sentence

Many people have been saddened and horrified by the sentence handed down to Sam Pybus for the murder of Sophie Moss. He had pleaded guilty to manslaughter, but not to murder, using the so-called ‘rough sex defence’ that his violence towards her, in this case strangulation, had at the outset been consensual. His plea to manslaughter was accepted and he was jailed for 4 years and 8 months.

A number of people have asked how a sentence can be reviewed as ‘unduly lenient.’ It is done through the Attorney General’s office. A template letter is provided here.

Attorney General’s Office 

By email: uls.referrals@attorneygeneral.gov.uk

Date: [before 4 October 2021]

Dear Attorney General

I am writing to you to request a review of the sentence of Sam Pybus, passed at Teesside Crown Court on 7 September 2021, as unduly lenient. 

The sentence was one of four years and eight months imposed for manslaughter. Pybus had strangled Sophie Moss to death, while he was intoxicated. Although he said he could not remember what had happened, he entered a guilty plea saying it had occurred during consensual sexual activity. 

The Sentencing Guidelines state that where death “was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability, which carries a starting point of 12 years custody. It ought to be obvious to anybody that strangulation carries a high risk of death or GBH. 

I would ask you to refer the sentence to the Court of Appeal as unduly lenient.

Yours sincerely

Yet More On Misgendering

This is yet another look at misgendering, in which I take a rather less robust view than Naomi – referencing her post here – as to when it might be reasonable to misgender a colleague in the workplace. (I am not looking at it outside that context, because the Equality Act does not govern how people relate to one another in the course of interpersonal relationships.)

I will use the same characters from Naomi’s blog: Jen and Liz. But in my version, Jen is not transitioning – rather, having attended an Alpha course, she has become a practising Christian, while Liz is an avowed atheist. In each case, the situation arises after a casual discussion about their respective plans for the weekend. Jen has told her colleagues that she will be baptised. It leads on to a more general discussion about religion in which, having been asked directly what she thinks, Liz makes clear that she views any religious belief as “delusional,” and refers dismissively to “sky fairies,” “science-deniers” and “medieval superstition.” (In a social conversation in which she was expressly asked, she is entitled to answer.)

Scenario 1 

In this scenario, Liz does not repeat her views on religion to Jen, and Jen does not say anything more about her faith to Liz. They continue working together, albeit with some awkward silences. 

This is clearly acceptable.

Scenario 2 

In this scenario, Liz makes a point of repeating her views on religion to Jen whenever they are together. Liz asks Jen whether she also believes in the tooth fairy, and demands to know why she is wearing a polycotton blouse when there is an edict in Leviticus 19 against wearing clothes made from more than one fabric. In the canteen, she highlights news stories about child abuse in the church or religious wars whenever Jen is nearby. When Jen asks her to tone it down, she points out in a way Jen finds belligerent that her lack of belief is just as much a protected characteristic as Jen’s belief, and suggests sarcastically that Jen practise turning the other cheek.

Liz is clearly harassing Jen.

Scenario 3 

Knowing that Liz is an atheist, Jen persistently tries to convert Liz despite Liz’s clear lack of interest, offering to pray with her, and giving her Bible study leaflets. After Liz’s picture is in the papers showing her attending a pro-choice march, Jen tries to interest her in materials including a “post abortion course” run by her church and focusing on forgiveness, which Liz finds particularly offensive because, unknown to Jen, Liz had an abortion aged 15 after being date-raped.

Jen is clearly harassing Liz, even if she was unaware of Liz’s personal history.

Scenario 4 

In this scenario, Liz does not target Jen in that she does not seek her out to denigrate her views and she does not repeat her own views to Jen directly. However, every time she mentions Jen’s name, she references their opposing views – with sentences such as “I’ll have to ask Jen, whose belief in a deity I do not share, if she can make 20 copies of that” or “Can we check if Paul, Amy, and Jen (whose belief in a deity I do not share) can make the meeting?”

Putting aside for a moment that this scenario is necessarily artificial, would it be harassment? She is not saying it directly to Jen. Her own (lack of) belief is indeed protected. There is no evidence that she is treating Jen badly; she just doesn’t share her beliefs. And yet I think that most people would agree that this is indeed harassment, because in every single interaction Liz has about Jen, if not to Jen, she uses a phrase that reminds her colleagues that Liz thinks that Jen’s religious beliefs are nonsense. Would it make a difference if she had used less forthright language about her own atheism at the outset? I think probably very little, if any.

***

I cannot see any way in which a person could ‘misgender’ a colleague behind their back, even while avoiding using any pronoun but “you / your” to their face, without falling into the same error. Every interaction about the person serves only to reiterate and reinforce the disputed issue, and to remind everyone present of the subject’s biological sex. On that basis I tentatively disagree with Naomi’s view that refusing to use someone’s preferred pronouns will “almost never” amount to harassment.

This of course raises the question as to whether requiring an employee to use preferred pronouns stumbles into the same trap. Using the same, admittedly imperfect, analogy, would it amount to requiring Liz to refer to Jen as “Jen (whose faith I share)” at all times? On balance I don’t think that it would. This is partly because employees do say – may even be required to say – things at work which they would not say outside work – such as “have a nice day” to a customer upon whom they wish nothing but leeches and misery, or “our products are the best” when their own preference is the product of a competitor. 

But it is also because, socially, pronouns have a little more fluidity than the GC view tends to admit. ‘Passing’ trans people, however few in number, have been referred to in their preferred pronouns since Lili Elbe in the 1930s, through to Christine Goodwin in the 1990s and on to today. The use of feminine pronouns among effeminate gay men has been both reality and the subject of comedy, sometimes self-deprecating comedy, for decades. Are we really to believe that a neurotypical employee who could understand that “ooh, get her” might refer to a male person would still find referring to John / Jen as “her”  impossible? And is it really coherent to say that using a socially feminine-coded name – a proper noun – is a reasonable request for a male person but using a socially feminine-coded pronoun – a substitute for that proper noun – is not?

While it is of little immediate help to employees, HR departments, or those with the protected characteristics of gender reassignment or gender critical belief, the historical tendency of the English language to develop along the path of least difficulty may resolve this over the next century or so. In 2121, the use of the singular “he/she” may be as archaic as the 2021 use of the singular “thou/thee,” retained only in local dialect or historical language, or as completely obsolete as the 1021 use of the dual pronoun (wit – we two, git – you two). Equally plausibly, in 2121, linguistics students may be studying as a sociolinguistic phenomenon the brief historic revival of the Chaucerian singular ‘they’ in the 2010-2030 period. Who knows? 

Meanwhile, at least until there is a reasonable body of case law on the subject, I think that ‘misgendering’ a specific colleague may very arguably amount to harassment. Either Naomi or I will be wrong – or, given how case law develops, we will both be right and wrong on different points and at different times. 

Protection and safety: a right or a privilege?

Guest blogger Ffion Lloyd writes for Legal Feminist on the Refugee Convention of 1951 and argues that persecution on the basis of sex should be formally recognised within it.

The 1951 Refugee Convention is a United Nations multilateral treaty, currently ratified by 148 countries. The Convention is the key legal document in defining who is a refugee, a refugee’s rights and the obligations on member states. The Convention sets out the bases upon which a person is entitled to refugee status: if they have  ‘a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group’. The primary aim of the Convention is to safeguard the rights and well-being of refugees. In its efforts to achieve this aim, the Convention alongside the United Nations High Commissioner for Refugees (UNHCR), strives to ensure everyone can exercise the right to seek asylum and find safe refuge in other countries. However, despite these admirable aims, refugee rights are restricted due to the Convention reasons, arguably, being  outdated (as per G S Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, Clarendon Press, 2007) 86 – 96), because there is little or no explicit protection from specific abuses that only apply to women. As argued by Charlesworth and Chaiton in The Boundaries of International Law: A Feminist Analysis “the very nature of international law has made dealing with the structural disadvantages of sex and gender difficult.” 

Historically, the protection of refugees was a matter of discretion dependent on the willingness of individual sovereign states. It included those who did not fall within any major international treaties, but who were deemed to have a valid claim to protection. In the 20th century refugee protection evolved domestically through ad hoc measures applied to new refugee groups, who were originally excluded from the Convention. This represented a positive development in human rights as it was the first of its kind to attempt to protect all refugees. Additionally, as interpretation of the Convention has varied, it has enabled countries to implement a degree of refugee protection alongside domestic laws. Nonetheless, the Convention has had fundamental flaws from its inception. One of the main historical criticisms of the Convention has been its enduring lack of protection of refugee women, who constitute half of all refugees.

Under the Convention, the Convention reasons of ‘social groups’ and ‘political opinions’ lack clarity. The Convention does not refer to sex as a ground for being afforded protection, an omission considered by some to be a failing of the Convention. The significance of this is that women are not expressly protected as falling within a Convention reason, despite  high incidences of female genital mutilation (FGM), human trafficking, forced marriages and rape cases. 

The World Health Organisation (WHO) defines FGM as “procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons” . It is a practice female refugees confront in their countries of origin and is one of the biggest problems facing female refugees.  According to a UNICEF report (2020) 29 countries allow FGM and it is claimed 52 million females alive today have undergone FGM. However, the number of women and girls who have undergone FGM could be substantially higher, as reliable worldwide data is not available. However, because sex is not a Convention reason to recognise persecution, protection from this specific abuse is inconsistent under the Convention, even though it is recognised as a violation of  female human rights, including freedom from torture and inhuman and degrading treatment, as well as right to health. FGM is a crime in many countries including the USA, the UK and South Africa where it is recognised as  a form of violence against females. It causes long lasting physical and psychological harm and is in direct opposition to  basic human rights

This was demonstrated in the case of Fornah v. Secretary of State for the Home Department in which Fornah claimed she could not return to Sierra Leone because she would face gender-based persecution by being forced to endure FGM. Consequently, the UK House of Lords agreed “intact” women in Sierra Leone, who had not undergone FGM, constituted a particular social group, for the purposes of the 1951 Convention. However, because sex is not a Convention reason, each FGM claim will need to be assessed on its own, to establish whether women facing FGM in that particular country, at a particular age, from a particular tribe or background, constitute a ‘particular social group.’ If not, then the woman is not protected under the Refugee Convention although she may be able to access alternative humanitarian protection.   Consequently, in my view, the Convention lags behind current global affairs because of the inconsistency of interpretation.

Baroness Hale stated in the case of Fornah that if the refugee definition was properly interpreted, it “can encompass gender-related claims.” On the other hand, despite the Convention allowing room for interpretation, under French refugee law, women who have already experienced FGM are not entitled to any form of protection. A third of the claims for refugee status in France have been made by females and of 36,720 applicants only 4,713 were granted refuge. Under French refugee law, the experience of past FGM is not regarded as constituting persecution, despite the risk of further FGM abuses. The assumed justification for this is that the mutilation is a single act that will not be repeated in the future and will not lead to further persecution. This line of reasoning was rejected in the USA in the case of Mukasey, in which the Board of Immigration Appeals held a woman who has been subject to FGM can be cut a second time. Despite this finding, France has not updated its refugee law. 

The UK only recently had its first ever successful criminal trial on FGM. In February 2019 a mother was sentenced to 14 years in prison for performing FGM on her 3-year-old daughter. This case demonstrates, although countries are attempting to protect vulnerable women and girls, it is clear more needs to be done. Despite this case being a success for female equality and basic human rights, it is unsettling that the UK only recently successfully protected its most vulnerable females. This case highlights how slow the law is on offering protection to females, specifically female refugees. 

Forced marriage has been acknowledged (in the phrase used by UNHCR) as a gender‐related form of persecution in some jurisdictions. Currently 117 countries allow forced marriages. Canada has accepted gender‐based grounds for refugee claims since the mid 1990’s, which includes forced marriage. Additionally, in TB (PSG – Women) Iran v. Secretary of State for the Home Department, the Immigration Appeal Tribunal held “young Iranian women who refuse to enter into arranged marriages” constituted a particular social group. Consequently, the appellant’s claim for asylum was upheld by the Immigration Appeal Tribunal as she would be persecuted if returned to Iran. Despite the Refugee Convention being written in 1951, certain countries have interpreted it to protect female refugees from specific abuses, such as forced marriages, highlighting it is possible to protect female refugees from this type of persecution. Nevertheless, despite the UK and other countries achieving great strides in human rights and acknowledging the specific abuses female refugees are subject to, it is becoming more apparent that more needs to be done. It is striking, that even post Shah and Islam UK, there is still no particular social group for women fleeing forced marriage, as the current Convention stands.  

One of the main challenges facing the protection of female refugees from forced marriages is the domestic law and customs of the countries where forced marriage is legal. It is particularly notable that women’s education levels are a high factor when it comes to the forced marriages of female refugees. Educated women are better able to recognise their experiences as abuse, while less educated women may accept it as normality. A study in 2008 highlighted urban and highly educated women in Lebanon were ‘somewhat less constrained’ by social customs and ‘would not be subject to forced marriage, and if she were, could evade it.’ Consequently, the education of female refugees is paramount in reducing the level of risk they may face of specific abuses.

In recent years, international organizations have paid increasing attention to a particular problem affecting female refugees, human trafficking. Female refugees need more international protection from human trafficking. While not all victims of trafficking are refugees, depending on the circumstances, many victims of human trafficking qualify for refugee status. Female refugees are at particular risk of being victims of human trafficking. This is due to many factors, including their vulnerable status, the losses they have experienced and their displacement geographically. According to the UNHCR, trafficking risks for female refugees are increasing worldwide. Under the current grounds of persecution of the Convention, protection for female refugees from human trafficking is non-existent, meaning female refugees must depend on the domestic laws of the country they are in. 

In times of conflict and chaos, female refugees are often pressured into work where they are exploited and abused. Prostitution is often one of the only ways female refugees can make money for their families. However, the voluntary nature of such work is questionable when there is no alternative source of income – and indeed exploitation of a position of vulnerability is recognised within the Palermo Protocol as a form of coercion. Individuals are at serious risk of falling into the hands of sex traffickers. This is compounded by the lack of protection for female refugees under the current grounds for persecution, forcing many female refugees into extremely dangerous situations

To conclude, at the time of its establishment, the 1951 Refugee Convention made great strides in human rights, but now, as the world changes, the Convention’s deliberate gender-blindness is an impediment, rather than an asset, to justice for female refugees. As illustrated above, it is possible for countries to interpret the Convention so that ‘particular social group’ extends to protection against specific abuses that only happen to female refugees, but this relies on interpretation. In my view, interpretation is not enough: protection for female refugees should be a codified right, not a privilege at the discretion of the member state’s interpretation. 

The current situation  leaves room for instability and uncertainty, and uncertainty gives rise in turn to grey areas where female refugees are protected in some countries and not in others. To reiterate the words of Charlesworth and Chaiton “The realities of women’s lives do not fit easily into the concepts and categories of international law”. Perhaps it is time that those concepts and categories are re-moulded to allow them to do so. An amended Refugee Convention is overdue, as the unique needs of female refugees must be protected, and the empowerment and the equality of females supported. 

I Know It When I See It

Legal Feminist welcomes feminist blog posts from practising lawyers. In this post, guest blogger and paralegal Ffion Lloyd writes about the shocking growth of the incel movement and suggests the time has come to treat it as a terrorist movement.

We all know the phrase, ‘I know it when I see it’, when you may struggle to describe or pinpoint what ‘it’ exactly is, however, we all feel it and know where ‘its’ boundaries are. Schmid and Jongman described terrorism as acts committed for “idiosyncratic, criminal, or political reasons.” This definition includes mass attacks by non-ideological psychotics. The Crown Prosecution Service describes terrorism as “the use or threat of action… designed to influence any international government organisation or to intimidate the public” which is “for the purpose of advancing a political, religious, racial or ideological cause” and cites examples as including “serious violence against a person” “endangering a person’s life” and “creating a serious risk to the health or safety of the public or a section of the public”.

Despite these recognised and accepted definitions, there remain a number of organisations and groups in the UK which blatantly pose a threat to the safety and security of society and yet are not recognised by the authorities as terrorist or as holding terrorist ideologies. 

On Thursday 12th August 2021 Britain witnessed its worst mass shooting in nearly a decade. A country that, since the Dunblane shootings, has successfully avoided the horror of mass shootings. We have prided ourselves on being the complete opposite to the USA when it comes to gun control.  The UK has strict and rigorously enforced gun control laws; anyone caught in possession of an illegal firearm will face a mandatory minimum prison sentence of seven years.

But in spite of our tight gun control, two women, two men and a three-year-old girl were fatally shot in 12 minutes by a 22-year-old, self-identified ‘incel’. In the aftermath of this shocking event, use of the phrase “incel” had the media frantically seeking to explain what this right-wing, misogynistic ideology stands for. However, this is not a new term let alone a new group. A January 2020 report by the Texas Department of Public Safety warned that incels were an “emerging domestic terrorism threat” that “could soon match, or potentially eclipse, the level of lethalness demonstrated by other domestic terrorism types“.

Alongside that report, a 2020 paper, Studies in Conflict & Terrorism, published by Bruce Hoffman noted that the incel movement’s “core ethos entails the subjugation and repression of a group and its violence is designed to have far-reaching societal effects” and concluded that “the violent manifestations of the ideology pose a new terrorism threat, which should not be dismissed or ignored by domestic law enforcement agencies“. Yet despite these warnings, Jake Davison, a 22-year-old guy from Plymouth, was frequently and freely able to post YouTube videos, actively discussing his life failures and angrily complaining that the root cause of his insecurities and lack of sexual experience were the fault of women. More specifically, the lack of interest women had in him.

The Incel movement is an inherently misogynistic internet subculture that has reportedly led to over 61 homicide deaths since its founding. The term “involuntary celibate” arose in the 1990s and originally had no violent connotation. However over the last two decades, the incel community became increasingly misogynistic, blaming women and glorifying rape and violence against women.  Then in 2014, Elliot Rodger murdered 6 people, and wounded 14 others, as part of what he called a “Day of Retribution” rooted in the frightening notion that women were fundamentally flawed and deserved death. Rodger went on to write his lengthy 133-page manifesto in which he rationalises the massacre of women. In his “ultimate and perfect ideology of… a fair and pure world,” all women should be “quarantined” in “concentration camps,” where he could “gleefully watch them die,” though some would be kept alive and artificially inseminated to perpetuate humanity. Following this event, pro-violent, internet subcultures have continued to grow and have resulted in several murders and attacks by men propagating this terrifying ideology. 

Despite this, as the law currently stands in the UK incel ideologies are seemingly not regarded a dangerous enough to be classed as terrorism. In the past, extremist groups which have sought to overthrow the social order,  the IRA, the LTTE and most recently ISIS, have been deemed terrorist organisations. Why is the incel movement any different?  

ISIS provides a good case in point – it is recognised as representing a direct threat to the security of a country and its interests; the incel movement undermines democratic norms and values of equality and shares a number of similarities. They are male dominated, historically anti-women and heavily rely on the internet and online forums as a primary communication tool. While anti-women views existed long before the internet, subsections of the internet have accelerated their spread, expanded their reach and fuelled their women hating content.

The nature of attacks, perpetrated by violent radicalized groups such as the incel movement and ISIS, have a very gendered dimension which is predominately virtual and largely comprises young males. How can it be that one an illegal terrorist organisation and the other simply frowned upon, when at their core, they have such fundamental similarities? Does the fact that ISIS is founded in a religious doctrine make it fundamentally more dangerous? It is very hard to see why that should be the case.  If that is the case, what is the difference? Are incels deemed less dangerous because they predominantly target women and not men? Does this somehow make them less of a threat to society? 

If so, this is naive, given incel perpetrators have clearly shown that their attacks also target men, who are deemed attractive and lucky in life (‘chads’). More to the point, the suggestion that hatred of women is somehow less of a threat is also a terrifying conclusion. Violent attacks on women in general have been all too frequent items in the news in recent years, from the shocking assassination of Jo Cox to the brutal murder of Sarah Everard. The murder of Sarah Everard led to an outpouring of concern about violence against women.  And yet despite those sentiments, society has not yet fully recognised the dangers posed by those who fundamentally hate women.  Incel related violence is explicitly aimed at instigating an overthrow of social order. 

Terrorism, I know it when I see it. When will the government?