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

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

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

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

Your legal rights

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

How can you persuade your employer to respect your rights?

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

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

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

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

Think about your risk appetite

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

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

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

Raise a grievance

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

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

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

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

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

Challenge him.
Leave.
Pretend not to notice.

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

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

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

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

Complain to an employment tribunal

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

How can I afford to litigate?

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

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

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

Cracking the Code

The Times has reported that “it has emerged” that ministers have demanded a regulatory impact assessment of the EHRC’s draft Code of Practice before it can be laid before parliament and brought into force.

If this is right (the Times story is light on detail of how, exactly, it has emerged), it is extraordinary.

Regulatory impact assessments are normally carried out in order to assess the effects of a proposed change in the law. The government should not need to be told that an EHRC Code of Practice does not change the law. Neither should it need to be told that a Supreme Court judgment on the meaning of a 15-year-old act of parliament does not change the law. In For Women Scotland v Scottish Ministers, the Supreme Court has authoritatively interpreted the Equality Act 2010; that means it has told us what the Act meant ever since 2010.

The EHRC has power under section 14 of the Equality Act 2006 to issue codes of practice “to ensure or facilitate compliance with the Equality Act 2010 or an enactment made under that Act” or “to promote equality of opportunity”.

That’s a power, not a duty. The EHRC doesn’t have to issue a code of practice, but it may do so. A code of practice is admissible in evidence in criminal or civil proceedings and must be taken into account by a court or tribunal “in any case in which it appears to the court or tribunal to be relevant,” but it does not itself have the force of law. If the court or tribunal considers that a code of practice gives misleading or erroneous guidance, it must decide the case in accordance with the law, not in accordance with the code of practice.

A code of practice that is demonstrably erroneous (as the EHRC’s 2011 Code, which the current draft is intended to replace) is worse than useless: it’s still admissible in legal proceedings, and courts and tribunals have a duty to take it into account so far as relevant, but they are bound by the Supreme Court judgment. So the defunct Code of Practice will continue to rattle around confusing people — or in some cases providing them with the excuse they want to continue to act in defiance of the law. But every time a claim actually comes to court, the judge will still have to follow the law as set out by the Supreme Court.

Various conclusions follow:

There’s no point in a regulatory impact assessment of the draft Code currently with the Minister, because the job of the code of practice is not to change, but simply to explain the law.
It would be helpful for businesses and institutions if the equalities regulator were permitted to publish a code of practice to help them understand their duties under the law, but it’s not essential. The law is already as stated by the Supreme Court, and the judgment is written in clear language.
“We’re waiting for the new code of practice” will never be an effective excuse for failing to comply with the law.
The government should revoke the 2011 Code of Practice on Services, Public Functions and Associations at once. Only the government can do this. It is irresponsible and irrational not to do it.

None of this is difficult or arcane. The Government has access to teams of lawyers who understand it all perfectly well. And commentators are already starting to wonder how to hold government accountable, eyeing provisions like s.112 of the EqA 2010 on “aiding contraventions” and speculating about judicial review of the failure to lay the new code before parliament and/or the failure to revoke the old code.

So what are they playing at?

The proposed regulatory impact assessment looks remarkably like an act of simple cowardice. The government knows that a code of practice doesn’t make or change the law, but only explains it. It knows that this is not what regulatory impact assessment is for. It knows that many employers and institutions are currently delaying complying with the law until the new code is issued. It knows that many thousands of individuals are suffering ongoing legal wrongs because of the ongoing delay. It knows that a proportion of those will continue to bring claims, and the courts and tribunals will clog up with cases, and public authorities and private employers will continue to pour legal fees into defending them.

But it also knows that the new code of practice will be unpopular with many of its supporters. It is seizing on the idea of a regulatory impact assessment to delay the inevitable; and to redirect the fury of its activists to the courts and tribunals, and to the brave individuals who will have to go to court at great personal cost, often one by one, sometimes in groups like the Darlington nurses, to enforce their rights. It’s a craven exercise in blame-shifting.

This is not what leadership looks like.

FWS v Scottish Ministers: what to read before the hearing

The hearing next week before the Supreme Court of For Women Scotland v Scottish Ministers is a big deal.

Previous cases in the appellate courts have had serious implications for the impact of gender reassignment on women’s rights. Three in particular spring to mind: Croft v Royal Mail Group (2003), in which the Court of Appeal speculates inconclusively about what degree of surgical or medical “transition” ought to be required before a man should be allowed to use women’s facilities in the workplace; Goodwin v UK (2002), in which the European Court of Human Rights laid the foundations for the Gender Recognition Act 2004; and Chief Constable of West Yorkshire Police v A (2005), in which members of the House of Lords came up with the eye-popping notion of a transsexual who was “visually and for all practical purposes indistinguishable” from a member of the opposite sex, and opined that it would be unreasonable for detainees to be unwilling to be searched by “a trans person of the same sex” (ie a person of the opposite sex).

All three cases have something striking in common: there was no-one in court whose job was to represent the interests of women, and women’s rights were in each case casually swept aside. This appears with particular starkness at ¶91 of the judgment of the ECtHR in Goodwin:

No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

The alert reader will notice who in particular is meant here by the “society” that is expected to tolerate a certain inconvenience: women. The reader both alert and well-informed will understand by now that “inconvenience” has turned out to stand for things like being gaslit, tricked, shamed or coerced into sharing communal showers or changing rooms with any man who says he is a woman; being required to submit to a strip-search conducted by such a man; being tricked into submitting to intimate medical procedures at the hands of such men; or being imprisoned with male sex offenders.

Against this background, FWS v Scottish Ministers makes a refreshing change. The appeal is brought by a feminist organisation with the express purpose of defending women’s rights. For the first time, an appellate court considering these issues will be required to treat women as human beings with agency and rights of their own, and will be asked to give women’s rights and interests their full weight. It’s going to be a novel experience.

The written arguments of the parties and the intervenors have now all (with the exception of Amnesty UK’s intervention) been published. The arguments themselves make for pretty dry and technical reading, but we also have the benefit of analysis from various commentators. The purpose of this post is not to add to that, but to collect together a list of links for anyone interested in the issues. I’ll try to keep this page updated with any further commentary that becomes available (or comes to my attention) between now and the end of the hearing — so if there’s anything I’ve missed, please let me know in comments.

First, the written arguments of the parties and intervenors can be found here: UK Supreme Court – For Women Scotland. They are also published with a collection of further links by Tribunal Tweets, who will be live-tweeting the hearing: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court

Academics and practitioners

Dr Claire Methven O’Brien

The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations?

Dr Michael Foran

UK Supreme Court to decide “What is a woman?”: A detailed look at the arguments

What is a woman? The Scottish Government’s case

Can the meaning of “sex” in the Equality Act vary depending on context?

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method –

Scott Wortley

Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,
— Scott Wortley (@scottwortley.bsky.social) 2024-11-19T20:51:03.317Z

Organisations

Murray Blackburn Mackenzie

For Women Scotland vs the Scottish Ministers: making the arguments transparent – Murray Blackburn Mackenzie

Briefing note: For Women Scotland vs the Scottish Ministers, UK Supreme Court, 26-27 November 2024 – Murray Blackburn Mackenzie

Sex Matters

Sex Matters’ intervention to the Supreme Court

What about the other side?

We have appealed on Twitter for analysis arguing that the Scottish Government should win. We haven’t heard of much, but there are these links:

FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.
— A Mere Solicitor (@ameresolicitor.bsky.social) 2024-11-22T18:33:35.561Z

Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.
— Robin Moira White (@robinmoirawhite.bsky.social) 2024-11-22T18:04:27.483Z

https://bsky.app/profile/concerned-person.bsky.social/post/3lbkkq7mbf22g

Defining ‘sex’ in the Equality Act

Sex and deception

I wrote last week about why it’s necessary to keep all men out of spaces that are supposed to be for women only. I ended, on the subject of women traumatised by male violence:

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

I had put a hypothetical scenario of this kind when I was cross-examining a member of Edinburgh Rape Crisis Centre’s board in Adams v ERCC last January. The witness agreed agreed that this was perfectly plausible:

A Muslim woman who does not have mother tongue English, who is a rape survivor, makes an appointment to see a support worker and she is assigned to Mridul. She is told all the support workers are women and she may presently find herself alone in a room talking about her sexual trauma to Mridul Wadhwa.

The witness gave clear, definite evidence that although she believed that it was Wadhwa’s practice to disclose at the first interview with a service user that he was a “trans woman”, so far as the ERCC board was concerned, he had no obligation to do so. It was perfectly legitimate for him to counsel a rape victim over a number of sessions without disclosing his true sex.

The point of my question was to demonstrate to the tribunal that the version of gender identity theory to which ERCC was signed up was so extreme that its witnesses would see nothing wrong with this situation if it should arise. The witness obliged.

At the time that I put that question, I had no reason to believe that anything like this had ever actually happened in a rape crisis centre in the UK. Shockingly, I know better now.

Since the hearing in Adams, I have had disclosed to me the testimony of a woman who sought counselling at a rape crisis centre. She was given one to one counselling with a counsellor who presented as female and referred to himself as a woman. The service-user continued to believe that her counsellor was a woman throughout all her counselling sessions until the last. In the last few minutes of the final session, the counsellor referred to himself as a “trans woman”. The service-user understood only then that she had over a series of sessions over several weeks been meeting a man, one to one in a private room, and confiding in him about her sexual trauma.

I am not a journalist, and I cannot independently verify this story. But I find it wholly credible, particularly in light of the evidence that was given in Adams, and I have no reason to doubt that it is true.

Discrimination law and the experimental method

I want to apply yesterday’s dazzling insight that peanuts have to be left out of peanut-free meals to the words of the Equality Act and the specific question before the Supreme Court in For Women Scotland v Scottish Ministers, to be heard later this month. This is another fairly short point, though a little more technical than yesterday’s.

Broadly, the job of the EqA is to prohibit discrimination because of the various protected characteristics. But there are exceptions, so that it remains lawful for director of a play to insist that Juliet is played by a girl and Romeo by a boy, or for a charity to define its beneficiaries by reference to race, national origin or sexual orientation.

Paragraphs 26 and 27 of schedule 3 make it lawful to provide separate-sex services, and single-sex services, in situations engaging considerations like bodily privacy and dignity. They are expressed in general terms: what’s permitted is providing “single-sex” services or “separate services for persons of each sex”. Obviously that means excluding persons of the other sex. And the exclusion can only be a blanket rule, or the service can’t truthfully be described as separate or single-sex, just as you can’t describe a meal as “peanut free” if you sometimes put peanuts in it.

That much is straightforward, or ought to be. (There is in fact plenty of dissent to it out there, some of it undeniably heavyweight. Nevertheless, I think the law is clear.)

The question for the Supreme Court in FWS is whether the protected characteristic of sex in the EqA — whether someone is regarded as a man or a woman — is affected by section 9(1) of the GRA, so that a man with a gender recognition certificate declaring him to be a woman counts as a woman for the purposes of discrimination law. In other words, whether “sex” in the EqA just means sex; or whether it means sex except for people with GRCs, in which case it means the sex they are deemed to be because of their GRI. We can call these two possibilities “sex” and “certificated sex” for short.

The answer to this question determines what kind of discrimination a man with a GRC declaring him to be a woman is subjected to if he is excluded from a women-only service.

The law has developed a thought experiment, complete with imaginary “experimental control”, as the way of finding out whether someone has suffered discrimination for a particular reason. You don’t have to be a scientist to use experimental controls: we all do it pretty intuitively.

Suppose your desk lamp isn’t working. Is it the bulb? Is the socket it’s plugged into live? Is it the fuse in the plug? Is the switch in the “on” position? You find out which is the culprit by trying different things one by one. You change the bulb, keeping everything else the same. Does it light? If so, the problem was the bulb. If not, you put the old bulb back, and try the switch in the other position. Still no light? Switch the switch back, and plug the lamp into a socket you know is live.

Similarly, if Chris is refused entry to the women’s changing room on account of his obviously male appearance, is that because of his sex? The common sense answer is “yes”. But a GRC transcends (or confounds) common sense: if it operates in the context of the EqA, what matters is Chris’s certificated sex, not his actualy sex, so it tells us that Chris is a woman. To find out whether Chris has been excluded because of his sex, we have to compare him with someone who is of the opposite sex, and ask whether that person would have been excluded, too.

So, obedient to the pretence required of us by Chris’s GRC, we set to work constructing a comparator. We say “Chris is a woman, so a person of the opposite sex is a man, let’s call him Christopher. This is a women-only space, so Christopher would have been excluded just like Chris. So Chris wasn’t excluded because of his (deemed female) sex, because a person of the opposite sex would also have been excluded.” (In truth, the chances are no-one will ever do anything to Chris because of his “female” sex, because it’s almost certainly obvious that he’s a bloke.)

If we run the same thought experiment on the different PC of gender reassignment, we get a different answer. The law tells us that Chris is a woman (even while our senses tell us different). Chris is a woman with the PC of gender reassignment: although legally a woman, he is a woman not by physiology, but by legal deeming. Obviously a woman without the PC of gender reassignment — that is, an actual female woman — would not have been excluded. So we have our answer: the reason Chris has been excluded is because of his PC of gender reassignment, not his sex.

That means that excluding Chris can’t be justified under ¶26 or 27 of schedule 3, because those operate to permit sex discrimiation. But it may still be lawful to exclude Chris, because ¶28 of schedule 3 provides that it’s not unlawful to discriminate on grounds of gender reassignment in relation to the provision of single or separate-sex services, provided “the conduct in question is a proportionate means of achieving a legitimate aim”.

Remember, all this reasoning is proceeding on the assumption that that a GRC changes Chris’s sex for the purposes of the EqA. The weird thing about ¶28, on this assumption, is that it seems to say you have to work out whether the thing you did — excluding Chris — was a proportionate means of achieving a legitimate aim. But it’s always going to be — because, well, peanuts. If the space or service is single-sex, you can’t let a man in (even a man with a certificate), or in every sense that matters it’s no longer a single-sex space. A legal fiction can deem a man married to another man to be in a heterosexual marriage, or deem him to be female for pension purposes, etc, but it doesn’t actually change the reality or the real consequences of a male body (or even the real consequences of the theoretical possibility of a male body). It won’t affect the trauma reaction of the already-traumatised female user of that space, or the justifiable outrage and affront of the non-traumatised woman who looks up when taking her knickers off to meet the eye of a man in a space she was told was for women only. The fact that the man in question has a secret certificate at home in a drawer won’t — even if somehow she knows about it — make her feel any less embarrassed, angry or alarmed.

So ¶28 seems to call for “case by case” decision-making in a situation in which only a blanket rule will do. I explored the practical impossibility of that here: https://www.legalfeminist.org.uk/2022/02/16/admission-to-women-only-spaces-and-case-by-case-assessment/.

There are a lot of reasons why the Supreme Court should find for FWS, and this is only a relatively small one. But I think it’s pleasingly neat.

The reason I say that is that the “certificated sex” assumption leads you into this weird, artificial, counter-factual reasoning about when you can and can’t exclude Chris — and you end up apparently having to make a case-by-case assessment of something that can only be satisfactorily dealt with by way of a general rule, precisely because the “single-sexness” of the space is about what you tell the female users of the space, and whether they can trust you. It’s not really about Chris and his individual characteristics at all.

But as soon as you remove the GRA spanner from the works of the EqA, this bit of the machine starts running smoothly and rationally.

On that assumption — that s.9(1) of the GRA doesn’t affect the EqA — this bit of the law can recognise Chris as the man he looks like, and is. He’s excluded because of his sex, which for these purposes remains male. And that’s lawful under ¶26 or 27 if it’s lawful to run a single-sex space at all.

So what’s ¶28 for, on this hypothesis? Good question! I’m glad you asked it, because the answer is elegant and satisfying. The point of ¶28 is to make it lawful, where appropriate, to exclude not men, but some women from the space, because of their PC of gender reassignment.

Mostly, women who say they are men (“trans men”) will be perfectly welcome in women-only spaces. That’s because they are women, with female bodies. Their presence won’t affront, humiliate or alarm anyone, and they are likely to have the same needs as any other woman.

But some “trans men” have taken extreme steps to look like men. Women who do this can often do it quite successfully, for precisely the same reason that men who say they are women almost always remain very visibly male. The reason is testosterone. Testosterone is a powerful drug, and a one-way ticket. A man who has gone through male puberty will almost never be able to disguise its effects successfully in later life. But when a woman takes testosterone, she’s likely to acquire a much more male-looking physique, a broken male-sounding voice, facial hair and male-pattern baldness. So some women with the PC of gender reassignment really do look and sound pretty much like men, and there will be circumstances in which it is genuinely necessary to exclude them from women-only spaces for the sake of the other women in them.

Obviously, this is a fact-sensitive judgement which will depend on the particular nature of the space or service, who else is likely to be using it, how it is organised, and how convincingly masculine is the appearance of the trans-identifying woman in question. In other words, it calls for precisely the kind of “case by case” decision-making that ¶28 seems to envisage. The difference is that on this hypothesis — that “sex” in the EqA simply means “sex” —“case by case” makes perfect sense.

Sex, peanuts and statutory interpretation

There’s an aspect of the FWS case (For Women Scotland v Scottish Ministers) due to be heard later this month in the Supreme Court that is so childishly simple that one worries that the cleverest judges in the land may be too clever for it. This isn’t about the legal arguments that the Court will have to grapple with. It won’t win the case: dry, technical arguments about statutory interpretation are what will determine the outcome. But statutory interpretation should be done on a foundation of reality and logic.

The point is this. Single-sex spaces for women can’t have men in them, because if they do, they’re not single-sex.

I told you it was simple. It’s like the “no peanuts” rule for a peanut-free dish. If you label a dish “peanut free”, you have to leave the peanuts out. All of them. The fact that lots of people like peanuts is no answer. Peanut-free dishes aren’t about those people: they’re about the people who may go into anaphylactic shock and die if they eat a peanut. It doesn’t matter if the peanut has been mashed to a paste, moulded into the shape of a walnut and scented with walnut oil, so that no-one looking at it, smelling it or eating it would dream that it might be a peanut. It doesn’t matter if it’s got a special certificate that says that for legal purposes it’s a walnut. It still needs to be left out of the peanut-free dish, or the peanut-free dish ain’t peanut-free.

I have reason for my worry. It may be a simple point, but it’s one that the House of Lords managed to miss in Chief Constable of West Yorkshire Police v A [2005] 1 AC 51. This is a pre-GRA case, so of tangential relevance at best to what the Supreme Court has to decide later this month, but it’s a troubling precedent all the same. Lord Bingham said:

In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.

This is essentially the “case by case” approach to deciding whether or not a particular man should be permitted to use women’s facilities. It still has proponents. “Oh, but surely this particular man — this man who has wished with all his heart that he was female since early childhood, who has “lived as” a woman for decades now, who has had all the hormonal, surgical and cosmetic treatment money can buy to look as much like a woman as possible — surely no-one would be so heartless as to exclude him?”

This is coming at the problem from the wrong angle. It’s not about the man who wants to be treated as a woman or his wants or needs: it’s about the truthfulness and trustworthiness of the sign on the door that says “women only”. Because the female users of that space need to be able to be sure that there will be no men there: not even men who look very like women. Especially not men who look very like women.

Think about that for a moment, this idea of a man who is “visually and for all practical purposes indistinguishable” from a woman. Lots of women have suffered male violence, and some of those are permanently traumatised to the point that if they are surprised by a man in a supposedly female-only space, they will be retraumatised. These women may need domestic violence shelters and rape crisis services at certain times, but they don’t engage with the world solely as rape or domestic violence survivors. They have ordinary lives, too. They use public toilets, hospitals, gyms; they visit pubs, galleries, cafés, museums, theatres. They don’t wear a special badge or uniform so that we can identify them and make sure we cater for their needs. We don’t know who they are.

Obviously it’s not acceptable to say to such women “You can’t have any single-sex spaces”. But is it better to say “You can have single-sex spaces, mostly. Don’t worry: we’ll only let men use them if they look so much like women that you won’t be able to tell that they’re men.”

Think about that. Think about its power to undermine the certainty of an already traumatised woman that the woman she is dealing with at any given moment is truly a woman. If you’re not shocked by the sadistic, gas-lighting cruelty of that, you’re not doing the thinking bit right. Think harder. Think about it until you are shocked.

10 easy steps to the perfect authorities bundle

Getting everyone’s markings onto one copy of the authorities bundle can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo. Here’s how to do it smoothly.

Getting an authorities bundle agreed and finalised for the Court of Appeal can be a stressy pain.

Agreeing a list of authorities and compiling PDF and hard copies of the bundle isn’t too bad. A lot of the guidance in 10 easy steps to creating the perfect hearing bundle is relevant to the practicalities of things like shuffling the authorities into date order, producing an index and making sure the pagination and page labels line up. The bit that can be tiresome is getting everyone’s sidelining marking the passages on which they rely onto the same PDF copy of the bundle before it is printed and delivered to the court.

One way (perhaps the usual way) of doing this is to send the PDF authorities bundle round all the different parties in turn, for each of them to add their sidelining one by one. If the bundle is in several volumes, it’s likely to be quicker if the different volumes take different routes round the parties — so that, say, A can be marking up volume 1 while B is marking up volume 2 and C is marking up volume 3. And then everyone swaps round, and hopefully you end up with everyone’s markings on each volume.

I suppose in theory it could all go like clockwork. But if someone is slow, or the PDFs circulate for some reason in an unexpected order, or someone doesn’t read the instructions carefully enough and annotates the wrong volume at the wrong moment, it can go wrong a bit like a bad rehearsal for the criss-crossy thing they do with cannons at the Edinburgh Tattoo.

If this description brings you out in a clammy sweat of remembered stress, I am your bundle fairy, and I am here to make your life better next time.

Start with a folder, in OneDrive or some other location you can easily share with the other parties. Call it “joint authorities bundle” or something of the kind. Save in it court-ready PDFs of all the authorities you rely on, each one named with its full citation, prefixed with its year (or year and month, if you have a cluster of authorities from a single year), eg “2015 BBC v Roden [2015] ICR 985.pdf”. (Prefixing the names with the year and including the full citation is to force sorting in date order, and to make it easy to extract a draft index from the file list: see further 10 easy steps.)
Add sidelining to the PDFs to mark the passages you rely on as you go along.
Share your folder with the other parties. Ask them to add any authorities they rely on that aren’t already on your list, named in the same way, and sidelined for the passages they rely on.
Read the guidance at paragraph 29 of Practice Direction 52C.
Bin most of your authorities.
Once your collection is complete (and pruned as necessary) merge the reports, ready-sidelined, into a single PDF and add an index page.
Sort out page labels and pagination, and hyperlink the index to the first page of each report. Again, you can adapt the instructions from 10 easy steps for this: the principle’s the same. The individual authorities are now clutter, so move them out of your shared folder (though probably not to the bin, just in case of mishap).
Check whether you want to sideline any passages from the authorities contributed by the other parties, and do so if you want to.
Invite the other parties to do the same with yours, and each other’s. Unfortunately (anyway in OneDrive – I haven’t tried alternatives) you can’t actually all do this at the same time without using snazzy collaboration tools, but if everyone’s marked up their own authorities before putting them in the shared folder, there probably won’t be very much more to do at this stage. If it’s at all complicated, I’d suggest sharing a schedule of time slots, asking everyone to mark the window within which they plan to do any further sidelining, and then stick to those times.
Once everyone’s added any further sidelining, you’re done.

When the truth offends

Naomi Cunningham and Michael Foran

Speaking at a fringe meeting at the TUC this week, Jo Grady, the general secretary of the University and College Union (UCU) said (as reported in the Telegraph):

“whilst it’s clear that gender-critical beliefs are protected, the form of expression isn’t … You might have freedom of speech, but you don’t have freedom to offend … that’s one of the things that we try and educate our members about quite a lot.”

This betrays a misunderstanding of the law. The right to freedom of belief under article 9 of the ECHR explicitly protects the manifesting as well as holding of beliefs; and the right to freedom of expression includes the right to say things that are offensive, shocking, or heretical to current orthodoxies. Academics in particular are granted heightened protection in their expression, precisely because academic freedom necessitates the freedom to pursue truth, even when social and institutional pressure seeks to silence it.

The legal framework

Article 9 ECHR provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 ECHR provides:

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.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has been explicit that the protection of these rights is foundational to democracy. For example, in Sahin v Turkey (2007) 44 EHRR 5, [104], the Court concluded that

“freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.”

A similar commitment can be found within domestic law. For example, in R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ noted that

“A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”

This position was neatly summarised by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”

The importance of political speech — the ability to discuss public policy, law, governance, and rights — has been particularly emphasised as necessary for democracy. In R (Prolife Alliance) v BBC [2004] 1AC 185, Lord Nicholls stressed that

“Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts”

Similarly, the European court of Human Rights in Vajnai v Hungary [2008] ECHR 1910, has noted that there is “little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest.”

There is a wide latitude as to the manner in which such views are expressed. In De Haes and Gijsels v Belgium [1997] 25 EHRR 1, the Court observes that

“Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community… it must be remembered that Article 10 … protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”

As Jo Grady notes, Forsater v CGD Europe [2019] UKEAT 0105_20_1006 establishes that gender critical views are protected as philosophical beliefs for the purposes of the Equality Act. They engage both Article 9 and Article 10 ECHR and are considered to be worthy of respect within a democratic society. Because they engage these rights, their expression or manifestation is also protected, and this is so even where such expression is offensive. In R (Miller) v College of Policing [2020] EWHC 225 (Admin), Knowles J (at first instance) said:

“The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1) … in the Article 10 context, special protection is afforded to political speech and debate on questions of public interest.”

Comment

It is possible that the confusion arises from the fact that the right to hold a belief and the right to manifest it do not attract exactly the same protection. The former is absolute; the latter is qualified. This means that, as recently discussed by the EAT in Higgs v Farmor’s School & anor [2023] EAT 89, not every expression of a protected belief is protected.

Nevertheless, there is a strong presumption against interference with the manifestation of religious or philosophical belief. The onus is on those wishing to curtail the expression of protected beliefs to establish that it is necessary to achieve one of the aims specified at article 10(2), and that the means used are proportionate.

These questions are fact-sensitive, with few hard rules. One thing that is certain is that the law takes freedom of expression seriously, and in particular takes account of the chilling effect that any interference may have on the ability of others to exercise their rights; see R(Miller) v The College of Policing [2021] EWCA Civ 1926):

“The concept of a chilling effect in the context of freedom of expression is an extremely important one … when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”

The legal problem is where precisely to draw the line between protected speech, and speech so grossly offensive that interference can be justified. That line was not crossed by Harry Miller’s “opaque, profane, or unsophisticated” tweets; it is unlikely to be crossed by academics and scholars speaking about biological sex or its importance in political or social life. Academics and those who represent them can rely on a strong presumption that manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression.

Conclusion

Academic freedom in the UK (and many other parts of the world) is under threat from across the political spectrum. Instead of meeting that threat and defending academics, many institutions have been dismayingly ready to acquiesce in or even encourage the destruction of academic freedom. In particular, a union for academics should be knowledgeable about its members’ rights, and quick to defend them when they are attacked. The unflinching pursuit of truth is the beginning and end of academic integrity and the primary purpose of any institution seeking to represent scholars and their interests.

Within academia, only truth is sacred. Sometimes truth offends. So be it.

Dr Michael Foran is a Lecturer in Public Law at the University of Glasgow.

Barristers: read the small print

FreeBar describes itself as “a network of LGBT+ people and allies who work at and with the Bar”. It came into being in 2016, and remains small, with an annual income of less than £5,000. Its trustees are Alice Brighouse (Matrix Chambers), Caroline Harrison KC (2 Temple Gardens), Cameron Stocks (Gatehouse Chambers). Two treasurers, Conall Patton and Joyce Arnold (both of One Essex Court), manage its finances.

The FreeBar Charter

The organisation’s flagship initiative is its “Freebar Charter”, launched in November 2020. Barristers’ chambers are invited to sign up in order to signal to the world “that they are (or are working towards becoming) an LGBT+ inclusive organisation”.

In nearly 3 years, the Charter has attracted a total of 9 signatories. Only two of the organisation’s trustees have managed to persuade their own chambers to sign.

The Charter comprises 11 commitments. The first calls to mind Tom Lehrer’s Folksong Army:

“We are an LGBT+ inclusive and welcoming organisation. We welcome all people, regardless of sexual orientation or gender identity.”

Things go rapidly downhill after that. I won’t comment on all the pledges, but a few merit attention.

No. 2 reads:

“We always challenge LGBT+ phobic language or behaviour, whether from anyone in our organisation, or directed at anyone in our organisation from anyone dealing with our organisation.“

To the casual observer, this might also seem to be in “motherhood and apple pie” territory. But the devil’s in what’s meant by “LGBT+ phobic”. We don’t find a definition anywhere on the FreeBar website. I suspect the intention is to give the impression that if you want to know the precise limits of this particular mortal sin, you are already in terrible spiritual danger.

If the definition turns out (as such definitions often do) to include arguing that sex is real, binary, immutable and sometimes matters, this promises get barristers’ chambers into trouble with equality law; see Forstater v CGD, Higgs v Farmor’s School.

No. 4 reads:

We will ensure that by DATE our]/[Our] (delete as appropriate) internal policies and governing rules and procedures use only gender-neutral language, do not discriminate on LGBT+ grounds and are explicitly inclusive of those who identify as LGBT+.

A set of chambers which rewrote its maternity and parental leave policies to leave out feminine pronouns and words like “mother”, “maternity”, “breast-feeding” etc would create an unfortunate impression that it thought the erasure of women an acceptable price to pay for “trans inclusion”.

No 5 reads:

“We have a policy on transitioning at work applicable and available to everyone in the organisation.”

A note at the bottom of the page reads “Point 5: FreeBar can provide you with an example Transitioning at Work Policy if you would like it.” I requested sight of such a policy about a year ago. FreeBar is small, and some of the delay since then has been explained, and is for good reason. Nevertheless, by now I feel driven to the conclusion that those who have drafted the policies offered in this way are feeling some reluctance to have them publicly analysed. If, for example, they advise that anyone who asserts a cross-sex identity must be allowed to use single-sex facilities for the opposite sex, that will lead chambers into acting in breach of the Workplace (Health, Safety and Welfare) Regulations 1992.

No. 7 includes “we respect everyone’s choice of their own pronouns”.

Questions arise. Does this mean “we will reprimand and if necessary discipline anyone who declines to use others’ preferred pronouns”? Is this just cross-sex or plural pronouns on demand, or does it also apply to neo-pronouns? Does the rule apply to everyone, or just some people? If I were to declare my second person singular pronouns as “thou/thee” , would my colleagues be required to use those to address me – and do their best to conjugate verbs to match, too? Or does it only apply to preferred pronouns adopted in good faith, and would the assumption be made that I was trolling? But if the latter, how do you tell whether a man who says he’s a woman is in good faith or merely trolling? Does it depend on whether he bothers to cross-dress, wear make-up etc?

Whether and if so in what circumstances employers and workplaces are entitled to require the use of preferred pronouns is a contentious question on which there is as yet no clear guidance in the case law. Mackereth v DWP provides some indications in the context of employees’ interactions with service-users, but whether an employer or other workplace is entitled to compel the speech of colleagues among themselves, subordinating the article 9 and 10 rights of dissenters to claims to “politeness” of their trans-identifying colleagues, remains to be seen.

A note to point 8 suggests advertising vacancies on Stonewall’s “Proud Employers” platform. After last year’s judgment in Allison Bailey v Stonewall Equality Ltd, Garden Court Chambers et al, prudent chambers may feel some hesitation about making a public declaration of allegiance to Stonewall’s values in this way.

No. 10 ends:

We have/we would welcome the establishment of an LGBT+ network in our organisation.

That’s not a problem in itself, obviously. But have they thought it through? Do they realise that they are going to need to be equally welcoming to the establishment of a gender critical network, or risk unlawful discrimination on grounds of belief? Would it perhaps be better not to encourage members of a set of chambers to perform their political allegiances in the workplace at all?

Visibility page

FreeBar’s “Visibility” page profiles 44 individuals (mostly barristers but a few chambers staff and one High Court Master) from 26 different sets of chambers. It is striking that only 7 of those 26 sets are represented among the signatories to the Charter.

Barristers read the small print

The FreeBar initiative seems to have fallen very flat. This makes me feel proud of my profession. The exhortation in the title of this blog can be repurposed as an observation: in general, barristers read the small print.

Ten easy steps to the perfect hearing bundle

Bad bundles have been a cause of pain and frustration for courts and advocates for many years; see e.g. Sedley’s Laws of Documents. But technology provides new and creative ways to turn a simple set of documents into an instrument of torture for all concerned. The bundle in Allison Bailey’s employment tribunal sounds to have been a masterpiece of the genre (with thanks to Tribunal Tweets) :

Ben Cooper QC (as he then was) in Allison Bailey v Garden Court Chambers and Stonewall

Bundling is an awkward task. It’s drudgery, so it’s tempting (and often unavoidable, for reasons of cost) to delegate it to someone very junior. But it’s tricky drudgery involving lots of little decisions that are hard to get right if you’re not an experienced litigator. No wonder it often goes badly wrong.

This is a blog about how to make the perfect hearing bundle, and how to make the process of making it relatively painless. (It’s not intended for lawyers involved in big-ticket commercial litigation: they will have fancy and eye-wateringly expensive document management software, and they are big enough and ugly enough to look after themselves.)

The key insight here is that preparation of the bundle begins months – possibly years – before the hearing.

It goes like this.

1. Create a folder on your computer. Call it “draft bundle”.

2. Every time you generate or receive a document that may ultimately need to end up in the bundle, do the following:

(i) save it as a PDF if that’s not the form in which you have it already;

(ii) check that it it is fully searchable, and if not, OCR it – you can do this in Adobe Pro from “Scan & OCR” on the Tools menu or in PDF Expert from the “Scan & OCR” tab at the top of the page;

(iii) give it a name (see step 3), and put it in your “draft bundle” folder.

(Try to get disclosure from the other side in the form of a file of separate documents, preferably in their native file formats. Metadata is part of a document, and disclosable as a matter of course – and may be interesting in its own right – so you’re entitled to this. Turn each document into a PDF before saving in your draft bundle folder, saving copies of the original documents elsewhere. If some of the disclosure arrives in the form of PDFs containing a number of documents, split them up into separate documents first. You can do this quite fast by inserting bookmarks in Adobe Acrobat, and then splitting the document by bookmarks. Use the file name convention at point 3 below for your bookmarks, and Adobe will use the same bookmark names to name the individual files.)

3. Give each document a name. If it’s a document whose date is or may be part of the “story” of your case, prefix its name with its date in reverse order. So if it’s an email from Angus Beattie to Cordelia Diamond sent on 14 April 2020, you might call it 2020.04.14 AB-CD. The point of this is to force Finder or File Explorer to sort your dated documents in date order. If there’s a section of the chronology where it may matter in what order things happened on the same day, you can put the time as well, to force sorting in order within a particular date: 2020.04.14.09.33 or 2020.04.14.09.33.

(I like very spare indexes, so if I’m in charge of the bundle, emails will have names as short as 2020.04.14 AB-CD. But you could make the names a little more informative by adding the subject-line, e.g. 2020.04.14 AB-CD FW: Re: Grievance meeting. But whatever you do, don’t attempt a description of the document that is anything other than its name or its subject-line – if you do, you’ll get into endless tussles with the other party about whether your names are tendentious.)

You may have a few documents that are part of the chronological story, but which are undated. In those cases, I’d suggest making a guess at the most likely date and saving with a filename that indicates your estimated date, and the fact that it’s a guess. So maybe something like “2021.01.04 EF -GH est. date”.

4. Email chains are a bit of a pain. Divide them up and reduce duplication as much as you reasonably can, and label each short chain with the date of the message at the top, but don’t stress unduly. Everyone’s used by now to reading email correspondence in a slightly back-and-forth way.

5. For other documents, choose some naming convention that works for you – it’s less critical. You might prefix the pleadings, tribunal orders etc that you’re going to want at the beginning of the bundle “000”, things like policy documents and procedures “POL”, anything you’re not yet sure to do with “Q”, and so on.

6. Carry on doing this through the life of the case – do it with the documents your client gives you, the pleadings, orders from the court or tribunal, everything you get from the other side on disclosure. You’ll need to be quite disciplined, but your future self will be grateful.

7. When your collection is complete and you’ve fiddled with file prefixes so that the documents are in the order you want, deleted duplicates, moved irrelevant documents out etc, merge all the files in Adobe Acrobat. You’ll find Acrobat has used your filenames as bookmarks. (I expect there are other programs that will do this, too, though so far as I have been able to discover, PDF Expert doesn’t. I prefer PDF Expert for most purposes, so I just switch between the two.)

8. Next, to make your index, you need a text list of the files in your draft bundle folder. In Finder, open your draft bundle folder, highlight the top file and then using the shift key highlight the bottom file – this should highlight all files in the folder in blue. Then press Command+C (or in Windows, ctrl+C) to copy them.

9. Launch a text editor – e.g. TextEdit on a Mac, or Notepad if you’re in Windows – and make sure that you have “plain text” chosen – in TextEdit, that’s in the “Format” menu. Paste the file list from your clipboard: on a Mac, command+V. (Or you can skip the step about choosing “plain text” if you know how to paste in plain text – shift+option+command+V on a Mac.)

10. Copy your file list into a Word document and edit to remove all the “.pdf” suffixes. You can do this easily with search and replace, replacing “.pdf” with a space. This is the guts of your index.

11. Format your index, save it as a PDF, and stick it onto the front of your merged bundle.

12. Open your merged bundle in your preferred PDF viewer and add page numbers. Ideally, number the index pages in lower case Roman numerals, and start pagination proper on the first page of documents.

If your preferred PDF viewer is PDF Expert, you choose “Add Page Numbers” here:

13. Add the page numbers to your index. I think this is the bit you’ll have to do manually – but it’s just a matter of skipping through your bundle bookmark by bookmark and writing in the page number for the start of each document, so it’s not too terrible even for a large bundle. And it’s easy and requires no decision-making, so you can safely give it to someone very junior so long as you trust them to take care to do it accurately. (If you have Bundledocs – and probably other programs like it – it will do this bit for you.)

14. Turn your index page into a PDF, and add it to the front of your bundle.

15. Tweak page labels on your PDF so that the electronic page numbers align with your pagination. (You can do this in Adobe Pro from the “Organise Pages” menu under “Tools”.)

16. Add hyperlinks from the index through to the first page of each document. (Again, I think Bundledocs will do this for you, if you have it.) This is fiddly but easy, too. In PDF Expert, it’s here:

17. That’s it. Congratulations, you have made a perfect bundle. It was actually 17 steps, but apparently for clickbait reasons 10 is a better number, so I lied. Sorry.

This method has the following advantages, over and above the perfection of the end result:

Front-loading the fiddly stuff. Putting together a bundle from scratch a few weeks before the hearing is time-critical anxiety nightmare. The fiddly stuff can’t be avoided entirely: giving every damn document in the bundle a backwards-date-format filename is undoubtedly fiddly. But it’s fiddling that can be done a bit at a time over a long period.
The final stages are pretty easy, so adjusting your bundle at a late stage isn’t very painful.
Your draft bundle folder will be a useful reference source as the case progresses.
You can annotate and highlight the documents in your draft bundle folder freely, because it’s easy to strip annotations from the bundle once compiled but before sharing with the other side.
This means you can share your draft bundle folder with counsel, and she can start marking it up. So if agreeing the bundle with the other side proves fraught, your barrister isn’t jumping up and down with impatience and hassling you while you’re trying to deal with that – instead she’s serenely marking up documents and preparing cross-examination notes, secure in the knowledge that all her markings will appear in the finalised version of the bundle when it reaches her.

Post-script

It has been objected that if the barrister has access to the draft bundle folder and starts marking it up, the solicitor can see her work in real-time. I’m not sure how real a problem that is (I suspect most solicitors will have better things to do than monitor counsel’s preparation in this way) – but I can see that it could give you an uneasy sense of being under detailed surveillance, at least potentially.

Fortunately, there’s an easy answer. Get your solicitor to share the draft bundle with you. When you get to the point where you’d otherwise be screaming for a finalised bundle to start work, make a private copy, and start marking that up. Get your solicitor to tell you when they’ve agreed the contents of the bundle and are about to compile it – and at that point, if you want to, you can copy all your marked-up documents back into the shared folder. Choose “replace”, and your marked-up copies will replace their unmarked twins – but the folder will still contain any documents that have been added since you made your copy.