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, , 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  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, :
“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  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  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  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  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  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.”
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  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  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.
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.
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?
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.
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) :
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.
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.
How sensible is the law when it locks up vulnerable female prisoners with violent men who say they are women?
Giving evidence to the Women and Equalities Select Committee last week about the Scottish Government’s Gender Recognition Reform Bill, Lord Falconer was dismissive of fears that the Bill would make it easier for voyeurs, exhibitionists and violent sex offenders to access supposedly women-only spaces. He said “What you’re talking about is the law going bonkers” and assured the Committee that “the law is sensible people…courts will be sensible”.
That would be more reassuring if the law had not already been very bonkers indeed for some years.
The case of double rapist Adam Graham, otherwise known as Isla Bryson, has been hitting the headlines since his conviction on 24 January this year. Graham was initially remanded for sentencing to Cornton Vale women’s prison, before he was moved to a men’s prison in response to a public outcry. How did that come about, and was it a brief anomalous moment of bonkersness before sensible people reverted to being sensible?
Separate prisons for men and women
Separate establishments or parts of establishments for male and female prisoners have been maintained in the UK since 1823, when the Gaols Act 1823 provided “In all such Gaols, the Male and Female Prisoners shall be confined in separate Wards or Parts of the Gaol.” The UN Standard Minimum Rules for the Treatment of Offenders (otherwise known as the “Mandela Rules”) provide at rule 11(a):
Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.
The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which supplement the Standard Minimum Rules, lay particular stress on physical and psychological safety at paragraph 9:
In its resolution 61/143 of 19 December 2006 entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender-based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women… The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account.
The current position in domestic law for England and Wales is less definite. It is to be found at rule 12 of the Prison Rules 1999, made under the Prisons Act 1952:
(1) Women prisoners shall normally be kept separate from male prisoners
Interestingly, the Prisons and Young Offenders Institutions Scotland Rules 2011 say:
126.—(1) Female prisoners must not share the same accommodation as male prisoners.
(2) The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison.
Despite these provisions, the principle of single-sex prisons has been quietly eroded since men who had had genital “reassignment” surgery started to be imprisoned with women by the 1980s (Biggs, 2020). In 2009, the prison authorities were still holding the line that surgery was a pre-requisite for transfer to a women’s prison.
That was already a significant departure from “people being sensible”. A man does not become a woman by having his testicles removed, nor by having his penis inverted into a surgically-created cavity as a “neo-vagina”; nor by having implants or taking hormones to create the appearance of female breasts. A violent man who has undergone some of those treatments may present less of a threat to women of certain particular kinds of crimes than an unmodified man, but he will retain his advantages of size and strength. Rape is only one of the ways that men terrorise women.
In any event, women’s wish for bodily privacy from men is not solely or even chiefly about demonstrable threat. It is about deep-seated taboo, and in some cases about trauma-induced fear. It is humiliating for a woman to be required to undress in the presence of a man, and for some women it will also be terrifying even if the particular man poses no risk. A woman traumatised by male violence may reasonably be hypervigilant in the presence of any man.
Genital surgery cannot reasonably be expected to make a difference to this. Why would it? Many women will object strongly to being expected to undress in the presence of men with whom they are not intimate. Few of those can be expected to feel any more comfortable undressing in the presence of a man who has had genital surgery. We do not wish to see male genitals in the women’s changing room; but we may well have a wish at least equally strong not to see the site of surgical removal or remodelling of male genitalia. Medical treatment is a private matter between patient and physician. It is not our business whether a man has had genital surgery or not, and we do not want it made our business.
These are considerations to which the sensible people who decided to start moving men into women’s prisons appear to have been oblivious.
But the law – or at any rate the administration of the law by sensible people – got more bonkers than that, much.
Mark (aka Karen) Jones
In 2009, Mark Jones, a male prisoner who had been granted a GRC but had not yet had genital surgery, brought judicial review proceedings challenging the prison service’s refusal to move him to a women’s prison. NHS policy at the time was to make “living as a woman” for two years a pre-requisite to surgery, and did not recognise “living as a woman” in a men’s prison as sufficient.
Jones’s convictions were for the manslaughter of his boyfriend, and for a terrifying attempted rape of a female stranger. He was evidently difficult to manage in prison. A report from his own expert supported the proposal to transfer him to the female estate on the basis of an expectation of a deterioration in his behaviour if his wishes were thwarted:
[The claimant] needs to control the threatening external world by imposing [his] own order and when this is not possible [he] resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements . . .
. . . As [the claimant’s] desperation to control [his] environment mounts, [he] experiences a heightening degree of narcissism or self-concern. [H]e is increasingly liable to experience aggressive and destructive impulses.
Argument in the case ( B v Secretary of State for Justice  EWHC 2220 (Admin)) focused on Jones’s article 8 rights, and the cost to the prison service of the (possibly extended) period of segregation in a women’s prison which was thought likely to be necessary before he could be allowed to “mix with and form friendships with other women [sic] as she [sic] would choose to do”.
The closest the court’s reasoning, or any material referred to in the judgment, came to considering the human rights of the women who were to be locked up with a violent, narcissistic and sadistic rapist is to be found in three short passages from the evidence. Mr Spurr, the Chief Operating Officer of the National Offender Management Service referred at paragraph 56 of his statement to a number of factors he said were relevant to the decision, including “concerns over how the female population would react to her [sic] generally, and also specifically if they became aware of her [sic] index offence”.
At paragraph 64, Mr Spurr said:
I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant’s risk to herself [sic], NOMS must also bear in mind the risk she [sic] poses to other prisoners.
Dr Barrett dealt dismissively with any unhappiness that female prisoners might feel about the company they were to be required to keep:
I would say that I suspect that caution will probably lead to her [sic] being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she [sic] is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her [sic] able to cope with the less prolonged, more avoidable, travails of the civilian world.
The court was persuaded. The judge held that holding Jones in a men’s prison interfered with his personal autonomy as protected by article 8 of the European Convention on Human Rights in a manner going beyond what imprisonment was intended to do, and that the prison service had failed to provide sufficient justification for the interference. He was accordingly transferred to a women’s prison to serve the remainder of his sentence.
There were only two parties present or represented in court: Jones himself, and the Secretary of State for Justice. The interests of the female prisoners who were to be locked up with Jones were not represented by any interested party or intervener, and there was no discussion in court of the possibility that they might be human beings with agency and relevant rights of their own.
Adam Graham (aka Isla Bryson) and Scottish Prison Service Policy
Anyone still cherishing the idea that “the law is sensible people” might regard the judgment of the court in B as a high-water mark of bonkersness, and look forward to it being swiftly corrected at the next opportunity. They would be disappointed by what happened next.
The Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was adopted in 2014. It says under the heading “Policy key principles”:
The accommodation provided must be the one that best suits the person in custody’s needs and should reflect the gender in which the person in custody is currently living.
That is a policy under which Mark Jones would have been automatically assigned to women’s prison simply on the strength of his self-identification as female. He would not have been put to the trouble of seeking surgery.
Adam Graham/Isla Bryson’s initial placement in a women’s prison was wholly consistent with that policy, and should have surprised no-one.
FDJ v Secretary of State for Justice (2021)
The first (and so far only) attempt to persuade the High Court to give some weight to female prisoners’ human rights in deciding where to place male prisoners who identify as women was made in FDJ v Secretary of State for Justice  EWHC 1746 (Admin).
FDJ served a sentence of imprisonment between October 2016 and June 2020, at HMP Bronzefield, a women’s prison operated by Sodexo. She sought judicial review of MOJ policies which allowed male prisoners who had been convicted of sexual or violent offences to be allocated to women’s prisons if they asserted a female gender identity and/or had been granted a GRC. FDJ gave evidence that she had been sexually assaulted by “J”, a male prisoner who had convictions for serious sexual offences against women. He also had a GRC declaring him to be a woman.
FDJ challenged two prison policies, referred to in the judgment as the “Care and Management Policy” and the “E Wing Policy”. The former included this:
4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate … unless there are exceptional circumstances, as would be the case for biological women.
Section 9 reads:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
Those words seem to have been interpreted by the prison service as imposing a duty on it to treat a man holding a GRC as if he were a woman (and vice versa).
This betrays a fundamental misunderstanding of section 9, which has a much more limited effect. It confers a status: it deems to be true, once certain conditions are met, something that is not true. It does not purport, in itself, to attribute consequences to the legal fiction it creates except in relation to privacy of information. If it did, the consequences would need to be defined, and supported by a carefully thought-out account of what it is to be “treated as a woman” and in what contexts the law could properly require such treatment; and it would need an enforcement mechanism. In general, after all, where the law makes provision about the different treatment of men and women, it does so not by requiring it, but by prohibiting it.
In truth, apart from the privacy provisions, the GRA is better understood as an ancillary enactment about the interpretation of other enactments than as the kind of legislation which in itself requires people to do things, or not to do things.
As Choudhury J confirmed in Forstater v CGD  IRLR 706 at para. 97, “for all purposes” at section 9 means “for all legal purposes”. The GRA does not itself, for example, compel anyone to think of a man who holds a GRC as a woman, or to treat him as such for social or dating purposes, or to ignore his true sex when providing him with sex-specific medical treatment or screening, or to give him access to women-only spaces, etc. If and to the extent that section 9 of the GRA confers on a man a positive right to be treated as a woman (or vice versa) it must do so through the medium of some other enactment or common law rule which attaches concrete consequences to a person’s legal status as a man or a woman. The obvious example (according the ruling of the Outer House of the Court of Session in For Women Scotland Ltd v Scottish Ministers  CSOH 90) is the Equality Act 2010.
The E Wing Policy considered in FDJ also proceeded on the assumption that any male prisoner who had a GRC must be housed in a female prison unless the wholly exceptional circumstances in which a female prisoner would be held in the male estate applied in his case.
FDJ in her challenge argued that these policies were unlawful because they indirectly discriminated against women contrary to art. 14 of the Convention read with arts. 3 and/or 8, and contrary to section 29 of the Equality Act; and that the prison service, in formulating its policy, had failed to take account of exceptions in the Equality Act permitting discrimination on grounds of both sex and gender reassignment. But she did not take the point that the policy misunderstood the effect of section 9 of the GRA by treating it as in itself conferring positive rights about treatment by other people; on the contrary, her counsel is recorded at para. 68 of the judgment as conceding that it does. (That concession finds some faint support in an obiter remark in Green v Secretary of State for Justice  EWHC 1746 (Admin), para. 68, but the remark is better understood merely as an acknowledgment – foreshadowing the For Women Scotland case – that a GRC deems a person to have changed sex for the purposes of any comparison in a sex discrimination case under the Equality Act.)
The court proceeded on the basis that paragraphs 26 and 28 of schedule 3 to the Equality Act permitted — but did not require — men and women to be housed in separate prisons. (There is a curiosity here, which is that it is not self-evident that schedule 3, read literally, is applicable at all to the performance of public functions like those of the prison service. But the assumption that schedule 3 was applicable to the allocation and management of prisoners has been made not only by a powerful Divisional Court in FDJ but also by the Court of Appeal in Coll v Secretary of State for Justice  1 WLR 2093, a case about the more restricted provision of approved premises for the accommodation of female prisoners released on licence than for male prisoners. That being so the point can probably be regarded as settled for all practical purposes.)
FDJ’s argument was that allocating prisoners to the estate corresponding to their gender identity instead of making full use of the schedule 3 permission to hold male and female prisoners in separate establishments had a disproportionately adverse effect on female as compared to male prisoners. That was because male prisoners in female prisons increased the risk of sexual assault to which female prisoners were exposed, whereas female prisoners in male prisons did not (or would not) increase the risk of sexual assault to which male prisoners would be exposed. The Secretary of State was therefore called upon to justify his policy. He could not do so because there were less intrusive measures which he could have taken to care for and manage male prisoners who identified as women.
The Secretary of State argued that the single-sex exceptions in the Equality Act should be used in a manner that is compatible with the art. 8 rights of transgender prisoners, and relied on B v Secretary of State for Justice.
Importantly, FDJ did not challenge the correctness of the decision in B (Mark/Karen Jones’s case), nor did she argue that there should be no men in women’s prisons. She argued instead that the Secretary of state should have struck a different balance between the rights of men who say they are women to be treated as women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.
The court accepted as valid and understandable the fears of female prisoners held with male sex offenders, but declined to interfere with the balance that the prison service policies had struck. Paragraph 83 reads as follows:
The difficulty which the Claimant faces, in my view, is that it is not possible to argue that the Defendant should have excluded from women’s prisons all transgender women. To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the Claimant herself says the Defendant should have taken. The submissions on behalf of the Claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the Care and Management Policy specifically requires the LCB and/or CCB to consider. More generally, once it is acknowledged that a policy could not require the total exclusion of all transgender women from the female prison estate, then in my view the policies require consideration of all the relevant factors to enable the risks to be assessed and managed on a case by case basis.
This, to my mind, is the heart of the matter. By limiting herself to arguing that convicted male sex offenders should be excluded from women’s prisons, FDJ had put herself in an impossible position. If it is accepted that the rights of some men to “live as women” entitle them to be held in women’s prisons, decisions about which men should be admitted, and which should not, become exactly the kind of delicate and sensitive judgements in which the courts will be understandably slow to interfere.
No men in women’s prisons?
So was the court right that it was “not possible to argue that the Defendant should have excluded from women’s prisons all transgender women”?
The schedule 3 exceptions deal with situations in which, for privacy, decency etc, it is necessary to provide services separately for women and men. Even assuming that the FWS2 decision is correct and sex in the Equality Act means sex except where modified by the application of a GRC, those exceptions provide expressly for the exclusion of all men – including men with GRCs – from women’s services or spaces, where circumstances justify it. The Explanatory Note to the Act gives counselling services for victims of rape as an example; prisons too are an obvious case where a blanket rule is likely to be justified.
Despite the existence (and accepted applicability) of those express exceptions, the court in FDJ seems to have assumed – without hearing argument on the point, but perhaps obedient to the earlier judgment in B – that their use could not be defended in relation to prisons.
No doubt some men with GRCs would like to be treated for all purposes as if they were women, even in those cases where there is a plain necessity to exclude them from something provided specifically for women. Possibly exclusion will cause them upset, increased dysphoria, rage or even anguish. But as the court in FDJ acknowledges at paragraph 76, it is also understandable that women imprisoned with men may suffer acute fear and anxiety. The qualified art. 8 rights of male prisoners who say they are women may be engaged; but so too are the qualified art. 8 rights and the unqualified art. 3 rights of female prisoners.
Even if the art. 3 rights of female prisoners can be disregarded so that the balance needed is simply between the art. 8 rights of female prisoners and those of male prisoners who say they are women, the numbers involved should be noted. Placing one man in a women’s prison in order to give effect to his art. 8 rights will infringe the art. 8 rights of all the women with whom he is imprisoned.
The schedule 3 exceptions
With those points in mind, we can consider paragraphs 26 and 28 of schedule 3 to the Equality Act, and ask whether it really is impossible for the prison service to make use of them:
(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—
(a) a joint service for persons of both sexes would be less effective, and
(b) the limited provision is a proportionate means of achieving a legitimate aim.
(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(2) The matters are—
(a) the provision of separate services for persons of each sex;
(b) the provision of separate services differently for persons of each sex;
(c) the provision of a service only to persons of one sex.
It is clear that in relation to prisons, a “joint service” would be less effective; and that the limited provision – that is, the provision of separate prison accommodation for men and women – is not merely a proportionate means, but the only possible means of achieving the legitimate aim of providing a humane and safe environment for female prisoners, respecting their privacy and dignity, and complying with international standards. That is the reason for the existence of separate men’s and women’s prisons, and it is – necessarily – ample justification for the exclusion from women’s prisons of all male prisoners without GRCs, including those who self-identify as women.
So far as male prisoners with GRCs are concerned, paragraph 28 applies. Under paragraph 28 the question assumes the prior existence of separate services for persons of each sex and simply asks whether the exclusion of men with GRCs from the women’s service is a proportionate means of achieving a legitimate aim. But once again, and for exactly the same reasons, the exclusion of men with GRCs is in pursuit of the legitimate aim of providing a safe, humane and dignified environment for female prisoners, and is not merely a proportionate means but the only means of achieving that aim.
Once the arguments are set out plainly, away from the noise of the thought-quelling chant “trans women are women” and in defiance of the related insistence that we speak and write of men who say they are women as “trans women” and refer to them with female pronouns, the result is clear.
The law in this area has already gone very bonkers indeed. Adam Graham’s initial placement in a women’s prison was not an anomaly, swiftly corrected when it came to light; it was a routine decision in conformity with a policy that had been in place for 9 years. A more forthright challenge to the presence of men in women’s prisons using clear language and centring the human rights of female prisoners cannot come too soon. Let’s hope that this time, the courts will be sensible.
The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK.
Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation.
There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.
If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill.
At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above.
Clause 15A says:
“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”
This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective.
So this new clause does precisely nothing.
The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that.
That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it.
For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020.
A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act.
This problem can be solved in various ways, but clause 15A isn’t one of them. ______________________
Naomi Cunningham is a barrister specialising in discrimination law. She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee. She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.
This is the text of a talk I gave on Wednesday evening to employment law solicitors at my Chambers.
I should start by acknowledging the elephant in the room. I broadly share the belief that lost Maya Forstater her work with CGD: namely that biological sex is real, important, immutable and not to be conflated with gender identity. We’re not going to be discussing the substance of that belief except tangentially, but inevitably there are various respects in which the position I take will affect the way I talk about my understanding of the law.
Staying with the elephant theme, the question I want to address is: “what are the main elephant traps for your clients in this area, and how do they avoid them?” I’m going to address that partly by reference to five cases that have been fought to a conclusion in the ET or on appeal over the last couple of years. So first, a quick outline of those cases.
The five cases
An employment tribunal held in December 2019 that Ms Forstater’s gender critical belief was not protected under s.10 of the EqA because it was “not worthy of respect in a democratic society” (or “WORIADS” as it’s come to be known). In June 2021, the EAT allowed Ms Forstater’s appeal, so that the case could be heard on its merits. In July this year, the ET held that CGD’s decision not to renew her contract had been because of her protected belief, and was therefore unlawful direct discrimination.
In Mackereth, the EAT upheld a tribunal’s decision that the DWP’s treatment of a medical assessor who refused to use the preferred pronouns of service users was not discriminatory.
InBailey v Stonewall Equality Ltd & ors, the barrister Allison Bailey sued her chambers and Stonewall for belief discrimination. She won part of her claim against her chambers and lost other parts. She lost the claim against Stonewall, and is appealing that part of the tribunal’s judgment.
The other two cases are V v Sheffield Teaching Hospital (which Anya Palmer has written about in more detail here) and Taylor v Jaguar Land Rover. In V, a tribunal upheld the claimant’s complaint that questioning him about his habits in relation to wearing underwear at work was discrimination on grounds of gender reassignment. He had been seen naked from the waist down in a women’s changing room. In Taylor, a tribunal found a number of complaints of harassment and direct discrimination proved by a trans-identifying male employee.
Between them, these five cases shed quite a bit of light on the elephant traps I want to talk about.
The elephant traps
The “social media policy” fallacy – treating some beliefs as more equal than others
All beliefs that pass the 5 Grainger tests needed to qualify for protection are of equal status. Employers are entitled to ask their employees not to proselytise at work; and they will often be entitled to place some restrictions on their employees’ public statements outside the workplace. Exactly how far those restrictions can go will depend on a range of factors – the ease with which the employee can be identified as such, her seniority; the nature of her role, and so on. Judges and civil servants can be required to keep pretty silent, in public, on matters of political controversy; supermarket checkout staff not so much.
There has been quite a lot of comment on Forstater to the effect that CGD’s difficulties could have avoided if only they had had a robust social media policy in place.
There are two problems with that. The first is that Forsater’s engagement, though direct, was pretty measured. That means that any social media policy sufficiently restrictive to silence her on the subject of GRA reform would have had to be draconian across the board. If it had singled out “gender critical” engagement for prohibition, that would have been discrimination just the same. You can’t make discrimination disappear by making it your policy to discriminate, and then saying you acted as you did not on the prohibited ground but in obedience to your policy. An employer could in theory decide on the draconian route, and just purport to put all political or contentious social media engagement out of bounds. But trying to enforce such a draconian policy would be likely to have a high cost in both management time and industrial relations. And an employer that dismissed for breach of such a rule might well find it hard to defend as consistent with the employee’s article 10 right to freedom of expression, which will be part of “all the circumstances” a tribunal has to consider when ruling on the fairness of a dismissal.
On the other hand, if an employer writes a draconian policy but only enforces it reactively when staff members or third parties take strong exception to the expression of particular views – well, the problem with that should be obvious. Effectively you’d be letting the mob decide which opinions may be expressed. If the mob discriminates, you discriminate.
A related elephant trap may be concealed in a more limited neutral-looking policy. Suppose your policy says something like this:
You must not make any social media communication that could damage our business interests.
It looks even-handed and fairly light-touch. But if what this formula really means is that employees mustn’t express unfashionable views because third parties might object, that won’t preserve the employer from a finding of discrimination. A more familiar parallel may help make this vivid: an airline can’t get away with saying, “Well of course we know that women make perfectly good pilots, but we don’t employ women to fly planes because our passengers wouldn’t feel safe and would vote with their feet.”
So what should social media policies look like? I’d suggest that a sensible policy for most organisations will simply ask senior and middle-ranking employees to make it clear that the views they express are their own, and to express themselves lawfully and reasonably courteously in any event. There’s nothing conceptually difficult about that, though an organisation faced with a social media pile-on may be called upon to hold its nerve.
That takes me to my next elephant trap.
This was illustrated by CGD’s conduct after Maya Forstater started to engage in the debate about the proposal to reform the GRA to bring in self-ID.
It’s notable from the evidence quoted in the judgment that some managers were initially nonplussed: they weren’t sure what all the fuss was about. One even admitted at an early stage that he wasn’t sure whether or not he agreed with Forstater. But as the campaign against her intensified, and they became aware of internal reactions to her tweeting described by one witness as “visceral”, they fell into line.
Their problem seems to have been a disinclination on the part of managers to look behind claims to be offended by Ms Forstater’s tweets, and make up their own minds whether she had said anything genuinely unacceptable. The high-water mark of the evidence against her was that she had described a man known sometimes as Philip Bunce and sometimes as Pips Bunce as a part-time cross-dresser in the context of a discussion about whether he should have accepted an award for women in business.
“Cross-dresser” is a term that can be found in many LGBTQ+ organisations’ glossaries, and Bunce is a man who sometimes but not always cross-dresses at work – so for my own part I find it difficult to see what was wrong with Forstater’s description. But that’s not to say it was completely fanciful to think her phrase a bit rude: the tribunal itself was split on that question, EJ Glennie and Mr Miller taking the view that it was uncomplimentary and dismissive but not in all the circumstances inappropriate or objectionable; the third member, Ms Carpenter did think it objectionable although that didn’t affect Ms Carpenter’s view of the result in the case.
Sensible managers would have given the complaints short shrift. Employees are not entitled to demand that their employers protect them from having to work with people they disagree with – or even with people who are sometimes a bit rude about third parties on social media.
That leads to my next elephant trap.
“Bring your whole self to work”
It’s become fashionable for HR policies to talk about making everyone feel pyschologically safe and able to bring their whole selves to work.
This may be some of the worst advice ever given to employees.
None of us should bring our whole selves to work. It’s perfectly fine to be an enthusiastic amateur opera singer, ju-jitsu practitioner or free-climber on your own time – but if you sing opera, wrestle your manager or literally climb the walls at the staff meeting, it won’t go well. Mr Pay, the Claimant in Pay v Lancashire Probation Service was dismissed because of what he did on his own time. If he had brought his whole self to work, it wouldn’t have taken the full intellectual heft of the Court of Appeal to spot that dismissal was fair.
More seriously: this kind of messaging is calculated to lead employees to expect to be allowed to police their colleagues’ beliefs and opinions. That’s not going to work in a diverse society. Maya Forstater’s belief that the differences between male and female bodies sometimes matter seem to have been bitterly offensive to some of her colleagues – but no doubt the opposing belief that men can be lesbians, and women and girls are not entitled to any reliable privacy from men was bitterly offensive to her. You can play the same game with many irreconcilable beliefs. An ethical vegetarian may think I am little better than a murderer because I eat meat; a religious colleague may think I am destined for hell because I don’t believe in God, an environmentalist that I’m a vandal because I drive a car.
That’s all ok – or it should be. These kinds of incompatibilities of belief may sometimes make friendship difficult, but they shouldn’t impede working together, provided everyone respects everyone else’s freedom of belief, conscience and speech.
So the message for employers is: don’t write policies that give employees the impression that they can expect their colleagues to share their beliefs, or even pay lip-service to them. But do make sure that employees don’t proselytise or try to impose their own beliefs on others in the workplace.
Of course, elephant traps are not just there for employers. The next one is for employees:
Being a martyr
Dr Mackereth was employed by the DWP to make medical assessments for the purposes of disability-related benefits. He was a Christian whose rejection of genderist beliefs had biblical roots. He made it clear in the course of his induction that he could not in conscience use pronouns for service-users other than those indicated by their sex.
The DWP sought to explore with Dr Mackereth the parameters of his position, seemingly with a view to retaining his services if it could, but Dr Mackereth resigned – saying that he believed he was being dismissed – while that process was ongoing. The EAT confirmed that the tribunal had permissibly found that the DWP’s conduct had been a response not to his beliefs but to the way in which he had indicated he was determined to manifest them.
Dr Mackereth seems to have jumped early on to the conclusion that he was bound to be dismissed, and to have been unwilling to engage constructively with the DWP’s attempts to find an accommodation. It’s not obvious that that was necessarily a lost cause: Dr Mackereth was willing to use clients’ preferred names, and in 1:1 meetings you might think it wouldn’t be too difficult to swerve the question of pronouns altogether.
If you are advising an employee at an early stage of a dispute of this nature, I suggest there are four key lessons from Mackereth:
1. Stay calm, and assume your employer is acting in good faith until the evidence to the contrary is overwhelming.
2. Don’t force matters to a head: be open to pragmatic work-arounds that respect others’ conscience and belief as well as your own.
3. Decide on your own red lines and communicate them clearly; but – crucially –
4. Don’t jump before you are pushed. If someone is going to decide that your beliefs can’t be accommodated in the workplace, leave it to your employer to make that decision.
That takes me to my final elephant trap:
Confusing the right not to suffer GR discrimination with a right to be treated as the opposite sex
The case that illustrates this is V v Sheffield Teaching Hospitals NHS Foundation Trust. It’s first instance ET decision, so it has no value as precedent – and in any case it is in my view pretty obviously wrong. But it serves as a cautionary tale.
V, a trans-identifying male, applied for a job as a catering assistant. He was given permission to use the women’s toilets and changing and showering facilities from the start of his employment, and his female colleagues were told that that was what he would be doing, and given bespoke training – before V started work – that seems to have been designed to ensure that they didn’t raise objections. The judgment of the ET is silent as to what if any medical treatment he had undertaken, but it is clear from how matters developed that he was obviously male.
V resigned a little over a year after he started work, and made a number of complaints against the hospital, including complaints of gender reassignment discrimination.
He made a number of complaints. The only one that succeeded arose as follows. In June 2021, there was a report to a manager that V had been seen naked from the waist down in the women’s changing room. On a previous occasion he had remarked to a colleague that he was hot and sweaty and had taken his underwear off, making a wringing motion with his hands. A manager asked him in a meeting about whether he was in the habit of removing his underwear, and the tribunal found that that question was asked because of his gender reassignment, and was to his detriment. He therefore succeeded to that extent in his complaint of discrimination. All his other complaints were dismissed.
My elephant trap is evident in the behaviour of both the hospital, and the tribunal.
The tribunal approached his complaint of discrimination on the basis that if he had not been a transsexual, he would not have been asked whether he was in the habit of removing his underwear. The comparator used by the tribunal is what it calls a “cisgender woman” in a similar state of undress.
If V had had a gender recognition certificate, there would be a respectable argument that a woman would be the correct comparator; though I think the better view is that even so, the correct comparator is a man who is not trans. But there is no suggestion in the judgment that V had a GRC, and on the assumption that he didn’t, the tribunal certainly chose the wrong comparator. If you want to know whether V was asked the question because of his trans status, you need to think how the employer would have treated a man who was not trans who was seen naked from the waist down in the women’s changing room.
I think the same error underpins the hospital’s approach to V’s use of the women’s facilities. It seems to have assumed that to deny him the right to do so would have been discrimination on grounds of his gender reassignment, and unlawful. But it would have been neither. If he had been excluded – like any other man – that would not have been because he was trans, but because he was a man. It would not have been sex discrimination because there were equivalent facilities for men. And it could not have been unlawful indirect discrimination on grounds of gender reassignment because it was obviously justified in the interests of protecting the privacy and dignity of his female colleagues, and complying with the obligation under the Workplace (Health Safety and Welfare) Regulations 1992 to provide separate male and female facilities.
It’s my view that this is the legally correct answer to the toilet conundrum: the women’s facilities in a workplace are for the use of women only, and trans-identifying males should be permitted to use either the gents’ or a single-occupancy unisex toilet. And that rule should be applied irrespective of whether a trans-identifying male has a GRC or what if any medical treatment or surgery he may have had: his female colleagues are entitled to have their privacy respected.
But my view isn’t without its vulnerabilities. InCroft v Royal Mail, the Court of Appeal ruled that a pre-operative transsexual had lawfully been refused use of the women’s toilets, but also suggested that at some stage of his transition he would have to be treated as a woman. Unfortunately the judgment doesn’t then offer employers the slightest assistance in identifying when that stage is reached. That was in 2003. By 2018, an ET in Birmingham felt able to treat it as self-evident that refusing a trans-identifying man use of the ladies’ was unlawful discrimination even in circumstances where – as is spelled out in the judgment – he had had no surgery and had no intention of undergoing any in the future. That case, Taylor v Jaguar, was a first instance judgment, and in my view clearly wrong in this respect – but it was not appealed.
So what is the right advice for an employer faced with the toilets conundrum? How does it minimise the risks of being sued?
The only truly safe option is the kind of facilities that we have here in Chambers: single-occupancy toilets which may be badged as male and female, but for which there’s really not much problem if someone uses the toilets for the opposite sex – anyway provided they aim straight, and raise the seat if appropriate. But suppose what you have is separate halls of cubicles separated by flimsy partitions; and one or two single-occupancy accessible toilets? Suppose that for reasons of cost or space or both you can’t remodel them. If you let a trans-identifying male use the ladies’, your female staff may sue you. If you offer him the use of the accessible toilets instead, he may sue.
I have nothing very comforting to say here. There’s no binding case law. The remarks in Croft are both Delphic and obiter. And whatever you do, someone’s going to be furious with you.
I think the best I can offer employers faced with a toilets or changing rooms problem is to suggest that should do what they think is right. That sounds trite, but if you’re likely to end up in court whatever you do, you might as well at least take a decision that feel able to defend wholeheartedly.
If an employer is struggling to form an intuition about what doing the right thing looks like, a good start might be to start not by telling its female staff how they ought to feel about sharing intimate spaces with a trans-identifying male, but asking them how they do feel. Given the climate of fear that’s been generated about admitting you don’t think men can literally become women, it’s probably a good idea to do that anonymously.
Notes, questions and some links.
I am grateful to Andrew Allen KC, who shared this event with me and provided a very helpful summary of the legislative background and the case law. This blog only reflects what I said.
There were questions about pronouns in email signatures, and “misgendering”. For more on those subjects, see
A tweet from Legal Feminist disagreeing with Acas advice on pronouns provoked a storm…
[image: taken from the illustrations to the Screwtape Letters]
In civilised life domestic hatred usually expresses itself by saying things which would appear quite harmless on paper (the words are not offensive) but in such a voice, or at such a moment, that they are not far short of a blow in the face… You know the kind of thing: “I simply ask her what time dinner will be and she flies into a temper.” Once this habit is well established you have the delightful situation of a human saying things with the express purpose of offending and yet having a grievance when offence is taken.
CS Lewis, The Screwtape Letters (in which an experienced Devil coaches his nephew in the art and science of temptation)
The other day, Acas tweeted out the suggestion that putting pronouns in email signatures could help create a more open and inclusive workplace. Legal Feminist disagreed:
There followed a storm of engagement, unprecedented for the Legal Feminst account: over 600k impressions, over 500 quote tweets and nearly as many retweets. I think the quote tweets in particular are revealing, and they are the main subject of this blog.
But before I get to that, I want to explain the context a bit; this will be old hat for many of my readers.
The gender war: a quick primer
There are two sides in this war. They call each other various names, but we can call them sex deniers and gender criticals.
Sex denialism claims that sex doesn’t matter. Whether you’re a man or a woman depends not on your body, but on your inner sense of identity. A male person who says that he is a woman should be treated, referred to – and even thought of – as a woman for all purposes; and vice versa. Various things follow. If a man wants to join a support group for female survivors of male sexual violence, then provided only he says he’s a woman, he must be welcomed in. If a man with fully intact male genitalia wants to undress in the women’s changing area at the swimming pool, anyone who objects is a pearl-clutching prude and a bigot. If a mediocre male athlete wants to compete in women’s events and start breaking records and winning medals, the women should move over. If a male doctor wants to identify as a woman, his true sex is none of his patients’ business – even where intimate examinations are concerned. If a rapist decides he’s a woman and wants to be moved to a women’s prison, that’s his right too.
Gender criticals think biological sex does sometimes matter: for healthcare, for safeguarding, for everyday privacy and dignity, for fairness in sport, and so on. They think sex is determined by whether you have a male or a female body, and that it’s no more possible literally to change sex than to change species.
The attentive reader will have noticed that the “gender critical” viewpoint is made up of commonsense propositions that until about ten minutes ago no sensible person – whether on the political left or right – would have dreamed of contesting. The sex denialist beliefs are novel, and surprising.
So where do pronouns come in?
This takes us to the manner in which sex denialism has been promoted. You can’t defend irrational beliefs with reason. By and large sex deniers don’t try: instead, their strategy has been to attempt to leapfrog over the usual campaigning, lobbying, arguing, persuading phases of bringing about profound cultural and legal change, and to pretend instead that the desired outcome is already accepted by all right-thinking people – and to silence dissent by visiting dire consequences on anyone who questions that claim. That, I believe, is the whole reason for the vitriol and toxicity that surrounds this subject. Anyone who points out the absurdity of propositions like “some women have penises” must be howled down as a bigot, shamed, no-platformed, hounded from her job, kicked off her course, etc. That way, any doubter who lacks an appetite for martyrdom will be persuaded to steer clear of the whole debate – and insist if pressed that this subject is all too complicated and toxic, and they simply haven’t found the time or head-space to form a view.
The more insidious part of the strategy is the first part: the pretence that the contentious propositions that form sex denialism are already accepted without question by all educated, right-thinking people. Sex deniers make determined efforts to weave their claims seamlessly into our language and the fabric of our workplace culture, with the aim of converting contentious claims into the kind of tacit knowledge that doesn’t even need to be stated or formulated.
So what does Acas mean when it says announcing your pronouns can help create a more “open and inclusive” workplace? Inclusive for whom, and how? Your colleagues and work contacts will mostly know whether you’re male or female, if they need to. If you have an androgynous name and you particularly want to announce your sex, adding a title after your name will clear up any ambiguity with much less accompanying baggage than pronouns. But why do we even need to do this? Those who reply to my emails don’t need to know whether I am female or male. The truth behind pronouns is that their “baggage” is the point. The mechanism by which pronouns are supposed to make the workplace more open and inclusive is that they demonstrate your support of sex denialism, but without requiring you to say anything explicit. They bolster and entrench the idea that gender identity is more important than sex, while maintaining the appearance of a trivial, harmless courtesy.
That’s why I think our tweet was right. The claims of sex denialism are far from universal: on the contrary, they are bitterly contentious. By putting pronouns in your signature you raise a flag that aligns you publicly with one side – and against the other – of the gender war. If you’re a Catholic pupil at a school in Glasgow where “No Pope!” is the standard greeting (I am not making this up – I have it on reliable authority that it’s an example drawn straight from life), you’re put to an invidious choice: either play along – or out yourself as a Catholic or Catholic-sympathiser. No doubt the greeting makes the environment feel welcoming and inclusive for the children of Rangers supporters; less so for young Celtic fans.
Given the bitterness of the dispute – and especially given the many occasions on which gender critical individuals have had their jobs, their livelihoods or even their physical safety threatened – being put to the parallel choice by pronoun rituals is not going to make the workplace feel open and inclusive for gender-critical employees.
An accidental behavioural experiment
Are you feeling sceptical? Thinking maybe I’m overreacting, over-interpreting a harmless bit of politeness? I sympathise. When I first came to these debates, that’s what I thought, too. Why’s everyone getting so het up about language? Can’t we just be polite – can’t we use the words preferred by people who care passionately about words, and focus on what matters?
If that’s where you are – re-read the short extract from The Screwtape Letters at the top of this blog, and consider the manner in which the original tweet has operated as an accidental behavioural experiment.
On the face of it, it’s quite a dryly techie tweet from a legal account, disagreeing with a bit of HR advice from Acas. But it’s had an extraordinary level of engagement: at the time of writing, nearly 700k impressions, hundreds of retweets and quote tweets, and nearly 3,000 likes.
So what’s going on? Why has it attracted so much attention?
I think the clue is in the quote tweets. They’re almost all hostile, and Twitter is a rage engine. Most fall into one of two categories: either words to the effect “What’s your problem with this trivial courtesy? Get a life!” or else “Ha ha nasty TERF bigots deserve to feel excluded and fearful.” I’ve done a rough-and-ready analysis, sorting about the hundred or so of these quote tweets into categories. I counted 66 that fell into the “ha ha nasty terven” category, 26 into the “harmless courtesy” camp – plus two that agreed with the original tweet and a few I couldn’t easily classify.
The typical HR response to any push-back against pronoun rituals is of the “harmless courtesy” flavour. Why, they ask, are you making such a big deal of this little thing? Why can’t you just be kind and polite like everyone else? Or at least not make an ungracious fuss if your colleagues want to be kind and polite! If you argue that pronoun rituals are an attempt to make a particular highly contentious belief system seem so mainstream that it can be treated as the default – and shame anyone who doesn’t subscribe to it – you’ll be met with polite bafflement. “What makes you think it’s that? It’s just a trivial courtesy that will make a marginalised group feel a little bit more comfortable. How much can it possibly cost you?”
This type of response was well represented in the sample I looked at. Here’s a typical one:
This is a perfectly understandable take from decent, well-intentioned people who haven’t given the matter a great deal of thought. But it’s hard to sustain in the teeth of the evidence provided by the other, much larger category of quote tweet. There are more than twice as many of these as from team “harmless courtesy”, and they make my case for me vividly – sometimes in unmistakably menacing terms. Here’s a small sample of that type:
This was a reply, not a quote tweet
The first of these is admirably clear: “MAKE THE BIGOTS STFU [for the pure in heart, that translates “shut the fuck up”]. THAT’S THE BLOODY POINT.”
This is the heart of the matter. A handful of responses of this type might have been explained away as the bad behaviour of a few hotheads. But the numbers involved make that impossible to sustain.
The quote tweets have vividly dramatised both aspects of the technique recommended by Uncle Screwtape in the extract at the start of this blog: one group (Zoë Irene et al) boasting that they are indeed saying something with the express purpose of giving offence – while the other group takes on the role of maintaining a sense of grievance when offence is taken.
Expressing loathing and contempt for those who hold gender-critical views may be fashionable; it even seemed to have a degree of judicial sanction until the first instance decision in Forstater was corrected on appeal. But the lesson from the judgment of the Employment Appeal Tribunal in Forstater needs to sink in. Gender-critical beliefs are within the protected characteristic of “religion or belief” (so too, probably, is sex denialism); harassing or discriminating against your employees on grounds of their protected beliefs can prove expensive. One of the things to be taken into account by a court or tribunal in determining for the purposes of a claim under the Equality Act whether conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them is whether it’s reasonable for it to have that effect. The fate of this tweet could itself provide telling evidence.
The current EHRC Code of Practice on ‘Services, public functions and associations’ says that whether or not any given trans-identifying man should be admitted to a women-only space is something that should be decided on a “case-by-case” basis, and it has been argued in court that this is what the law requires. It sounds quite reasonable, in the abstract: people should make nuanced decisions tailored to the individual circumstances, rather than blindly following blanket rules. What’s not to like about that?
The Equality Act 2010 isn’t as clear as it might be on this question – and as a result, the forthcoming EHRC guidance is eagerly anticipated. While we wait for that, I want to walk through how “case by case” might work in practice. I’ll take one everyday example, a gym.
I want to think about Louise. Louise is a 25-year-old gym employee, sometimes running fitness classes and sometimes doing a stint on reception. She has an industry-recognised Level 3 qualification in Personal Training. She’s a keen competitive windsurfer, and she plays for a local women’s rugby team.
One day Jill, a trans-identifying male arrives at the gym to take out membership. Jill is wearing make-up and women’s clothes, but has a deep voice and a hint of stubble, and is obviously male. After completing membership formalities, Jill says “You may be able to tell I’m trans. I assume there’s no objection if I use the women’s changing room?” The women’s changing room has a main space with pegs along the walls, communal showers, and a wall of lockers; and a few curtained cubicles for women who want more privacy. Most users change in the main space.
What’s Louise to do? What are the criteria on which she should decide whether Jill should be allowed to use the women’s changing room? Should she ask whether Jill has a GRC? Or what treatment Jill has had – hormone treatment, or surgery? Or should she treat that as intensely personal information that she can’t possibly ask about? But if so – how else is she to decide? Is she supposed to make an assessment of how successfully Jill “passes” as a woman? Or perhaps how much effort Jill has made to “pass”? Is she supposed to try to guess how likely it is that other users of the changing room will realise that Jill is male? Is her decision just about Jill, or should she also take into account considerations about the demographics of the gym’s membership – how many of the gym’s female users are middle-aged, or members of religious faiths in which modesty is particularly important? Is she supposed to be able to make this assessment on the fly, or should she ask Jill to come back another day after she’s had a chance to consider all the relevant circumstances and ask for any evidence and conduct any follow-up investigations she thinks necessary? And once Louise has made her assessment, are all the other receptionists supposed to abide by it – or do they have to do their own assessment each time Jill visits the gym? Is the “case” in question Jill, or this particular visit by Jill on this particular occasion?
Suppose Louise agrees that it’s ok for Jill to use the women’s changing room. Suppose Richard, who’s been a member of the gym for some years, overhears the exchange and says “Oh! I didn’t know that was allowed. I’m a woman too, actually, so I assume it’s also ok for me to use the women’s changing room?” Richard is dressed – as usual – in male business attire; he pops into the gym in his lunch-hour from the bank over the road where he works.
Now what? If Louise says yes to Jill but no to Richard, why’s that? Is it because she knows Richard, and has always known him as a man? Is it because Richard is dressed as a man, and is making no effort at all to “pass” as a woman? Should her decision be different if Richard confides in her that he has already transitioned in his home life, and his real name is Madeleine, but he’s still trying to get up his nerve to transition at work; but because he is really a woman – even though presenting as male for work purposes – he should be allowed to use the women’s facilities? Or suppose Richard says he’s genderfluid, and sometimes comes to work in “girl mode” – and asks if it’s ok for him to use the women’s changing rooms on those days?
It’s obvious – surely – that it’s not fair to put Louise in this position. She can’t be expected to make a “case by case” assessment. That conclusion doesn’t depend on any particular assumptions about her level of education: it’s no different if she’s working part-time in the gym while she completes her PhD in gender studies.
So now suppose you’re the gym owner – or if the gym’s part of a big chain, the chain’s general counsel. Louise is still at the sharp end of this: you’ve got to decide how to help her out. What policy are you going to tell her to follow? Are you going to take the decision out of her hands and give it to someone more senior? You could ask trans customers to fill in a form explaining their particular circumstances, and making a case for why they should be allowed to use the facilities provided for the opposite sex. You could ask them to provide evidence; maybe a copy of their GRC; a GP report; testimonials from friends or relatives. And then a manager could make the “case by case” decision on the basis of that information.
Good luck with that. Your trans customers will complain – with some justice – that the process is slow, humiliating and intrusive. They may object to being asked to produce documentation that other customers don’t have to produce – they may say you have no right even to ask whether they have a GRC. You don’t ask your other customers to fill in a lot of paperwork to explain why they should be allowed to use the facilities they want to use.
It’s not going to work, is it? Once you go to the trouble of imagining the practicalities on the ground of a “case by case” approach, you can see what an impossible thicket of difficulty it presents.
You can run a parallel thought experiment with any other single-sex space you care to think of: the practicalities of attempting a “case by case” assessment don’t get any easier. In some cases they get harder. If it’s admission to a women’s refuge in the middle of the night, then necessarily the decision is urgent and has to be made in a hurry – and the consequences for other traumatised users of the service are more serious if you get it wrong. In a gym, some of your female users may simply self-exclude if you let males use the female changing rooms. That’s bad enough – a service they value and that is good for them is effectively put out of their reach. But female inmates in prison don’t have the luxury of being able to vote with their feet: if your case by case assessment admits a trans-identifying male, you may be exposing them to chronic fear for the duration of their sentence. If it’s the ladies’ toilets at the nightclub, there isn’t even any plausible moment in the “customer journey” at which a case by case assessment might be made.
Fortunately, there’s a simple solution. What you need at your gym is women’s facilities, for women only, with no exceptions; men’s facilities, for men only, with no exceptions; and a sufficient number of single-user changing rooms for anyone who for whatever reason – and no-one need inquire what that reason is – isn’t comfortable using the facilities provided for their sex. That way no-one is excluded, no-one is asked intrusive questions – but also, no naked or half-dressed woman will be surprised by the unwelcome presence of a man. Everyone can get changed in peace.
Note: not all the LFs are comfortable with the use of male pronouns for even a hypothetical a trans-identifying male. But they haven’t censored this blog, because we don’t all agree on everything, and we value dissent.
This is the text of my talk at the Middle Temple LGBTQ+ Forum Inaugural Annual Dinner last night (unchanged apart from the addition of some links).
How do we arrive at good law making a new criminal offence? Robin says good law needs legal certainty, clarity, enforceability, practicability. But those all assume an affirmative answer to the prior question – do we need the proposed new law at all? I don’t share that assumption, so I have a rival four things I say we need:
evidence of harm
a convincing case that the harm is amenable to legislation
open public debate
Starting with the last: debate.
The proposed ban is one aspect of what we can call the “gender wars” where there has been a strong pressure for “no debate”. Those who have tried have been shouted down, no-platformed, compared to Nazis, and hounded out of their jobs.
Debate informed by evidence is how we test ideas and proposals: if they’re any good, they’ll stand up to being poked with pointed questions. If they don’t stand up to being poked, they’re no good. This idea underpins our whole profession.
So this evening’s discussion is an encouraging development. To find the CEO of Stonewall on a platform with me signals a welcome change of heart. Thank you Nancy – we need to have this conversation.
Evidence of harm
The evidence-base for this proposal is thin.
The government has made the proposal for law without waiting for Dr Hillary Cass to complete her independent review of gender identity services for young people. Instead it relies on 30 interviews and a review of existing studies by academics at Coventry University.
The Coventry review admits that for the UK, it only found 2 studies relating to gay conversion therapy, and none on gender identity.
The consultation also relies on the government’s 2017 LGBT survey where 5% of respondents said they’d been offered conversion therapy, and 2% that they’d received it.
But if you look at that survey itself, you find this killer line:
We did not provide a definition of conversion therapy in the survey
We don’t know how many of those 2% were lesbians who were recording social pressure to accept trans-identifying males as potential sexual partners.
We don’t know how many were teenagers whose parents or therapists counselled watchful waiting in place of treatment with puberty-blockers.
We don’t know how many were gender non-conforming children whose homophobic parents or peers had suggested to them that they must be trans.
We don’t even know the sex of the respondents, because the survey didn’t ask.
We don’t have a clue what these responses mean: they’re not evidence of anything.
The consultation admits that there’s no real evidence of harm. It says:
While the exact prevalence of conversion therapy is challenging to establish, it is the view of the government that one incident of conversion therapy is too many.
In other words, the government is saying – we just don’t know whether this is a real problem that needs legislation, but we’re going to legislate anyway.
Case for legislation
Even if there were evidence of harm, not every harm can be put right with legislation; sometimes the cure is worse than the disease. You’d hope a proposal for legislation would address cost and benefit.
But this consultation doesn’t get to that point. Having failed entirely to identify a credibly-evidenced or even defined kind of harm that is its target, it can’t hope to explain why criminalising it is a good idea – and it doesn’t even try.
Last element – clear proposal
The government’s core proposal focuses on children and vulnerable adults, and criminalises a talking therapy delivered
with the intention of changing their sexual orientation or changing them to or from being transgender
This muddles two different things.
Being gay or bisexual isn’t a medical condition. It doesn’t require treatment. We can all agree that practices that try to change people’s sexual orientation are wrong and futile.
Gender dysphoria sufficiently severe to make you seek radical alterations to your healthy body undoubtedly is a medical condition. There are two clues. The word: dysphoria – profound unease or dissatisfaction. And the demand for medical treatment.
Let’s run a thought experiment. Say you’re a therapist. You see an unhappy 10-year-old girl. She wears baggy clothes, and has short hair. She says she’s sure she’s a boy really. She hates her developing breasts, and dreads the onset of periods. She despises all things “girly.”
Your duty as a therapist is clear. You need to get to the bottom of the child’s distress. Is she struggling to come to terms with the beginnings of same-sex attraction in a homophobic environment? Is she traumatised by exposure to porn? Have her parents let slip that they’d have preferred a son? Has she suffered abuse or other trauma? The heart-breaking stories of detransitioners should be enough to make it clear how important it is to let you do that duty carefully and conscientiously.
The proposed law contains a safeguard for therapists treating people questioning their gender identity. But it won’t help you: this child isn’t questioning, she’s telling you she’s sure. So the government’s proposals threaten to lock you up for doing what your conscience and your professional duty both tell you you must do.
Gender non-conforming children often grow up to be gay adults. The bitter irony of this proposal is that it entrenches the idea that people can escape being gay by changing sex. This is a lie. Everyone in this room knows that it’s impossible for a human being literally to change sex. But the attempt will exact a terrible price in painful surgeries, loss of sexual function, sterility, and other complications.
This is the most savage conversion therapy ever invented.
It’s homophobia that creates the conditions for this conversion therapy: homophobia that tells gay children they are defective. Many of us here grew up in a profoundly homophobic society. Clause 28 was passed in 1988, when I was 22 and my elder brother was 23. My brother was gay. He killed himself on 13 January 1989. I believe that he died, in part, from the toxic effects of homophobia. Those problems of homophobic bullying haven’t gone away. There is still work to be done, and this is Stonewall’s proper mission.
In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.
Only Adults? Good Practices in Legal Gender Recognition for Youth, p.20
That is exactly what we see here. This is a proposal to criminalise something everyone agrees is bad – gay conversion therapy – but to use that as a veil of protection whose real purpose is to criminalise what should be routine responsible therapeutic work.
This is fundamentally dishonest. It is certainly not the path to good law.
There’s quite a bit of public noise about the opprobrium, silencing, no-platforming, and even threats to livelihoods that some gender-critical feminists have suffered over the last couple of years.
Those stories are true, and I don’t mean to minimise them in this short blog: it happens, and when it does it is disgraceful and shocking – and sometimes seriously harmful for the victims. But I worry that those cases are having a greater chilling effect than the true risks merit. The bullies only have to make a few high-profile examples for many other people who might otherwise speak up to be frightened into silence.
So this, for a change, is a positive story of speaking up without adverse effects.
I have written widely on the law relating to sex, gender and gender identity. Most of my writing has appeared on this blog, but I’ve also been published in the Employment Lawyers Association Briefing, the Discrimination Law Association Briefing and the Scottish Law Times. My blogs here regularly get viewing figures in the thousands – over 16,000 in the case of Submission and Compliance, my long read from February about Stonewall’s excessive influence. Some of my writing has been controversial even among members of the Legal Feminist collective: for instance, when I wrote (here) about Mridul Wadhwa’s appointment as CEO of Edinburgh Rape Crisis Centre, I used masculine pronouns, because it seemed to me important to write in a manner firmly grounded in reality. These days, for the same reason, I don’t use the expressions “trans woman” or “transwoman”, but “trans-identifying male” or “trans-identifying man”: again, I feel increasingly strongly that it is necessary to use words that reflect reality. Those choices are not universally endorsed by my Legal Feminist friends and colleagues, and some have said that they would feel unable to retweet in their own names material of that nature. (Despite disagreeing on this, we have stayed friends. Amazing, isn’t it?)
But gender extremists would go much further, and characterise some of my writing as hateful. And I am aware of many colleagues in the legal profession who broadly agree with what I write, but feel too fearful to speak up themselves. Given the demonisation of views such as mine and the resulting climate of fear, I think it’s worth telling the story that is no story.
That’s it. Sorry – it’s rather a boring story, but it’s true. Actually, I can add this. Not merely have I suffered no serious adverse consequences: I have reaped very considerable benefits, chief among which is the addition of the rest of the Legal Feminists to my professional network.
I’m careful, of course. I make sure that everything I write is grounded in solidly evidenced fact, or what is – at least in my genuine view – a correct interpretation of the law. I don’t get into angry Twitter spats; indeed, I don’t have a personal Twitter account at all, which means that if I am tempted get angry on Twitter (and the site is a rage engine), I have the sane calm voices of the Legal Feminists to hold me back from tweeting anything from the joint Twitter account that could harm our collective reputation.
I’m lucky. I’m reasonably senior and established, not a precarious beginner. I’m self-employed, so I don’t have an employer breathing down my neck. The world (or at least the part of the world that matters for these purposes, which is our professional clients – solicitors) understands that barristers are individuals whose views are not to be ascribed either to their Chambers or to their clients; and indeed that a set of Chambers isn’t really the kind of thing that has a view “of its own” on these sorts of subjects anyway. So there would be no legitimacy for my Chambers to try to silence me – and to its credit, although of course there has been some grumbling, it has made no serious attempt to do so.
In addition, because I am a lawyer, my professional regulator is full of lawyers, too. That’s comforting, because it means that I have good grounds for trusting it not to be tempted to discriminate against me on grounds of my gender-critical views, or to mistake belief in material reality for hate. So although complaints to my professional regulator have been threatened, the prospect doesn’t alarm me.