Grammar and grievance

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.

Pronouns

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. 

Acas’s advice 

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. Sex denialism is 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 is 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? 

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. 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 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. 

A clear majority of the hundreds who have engaged with this tweet by quote-tweeting it are saying in terms that the point of including pronouns in email signatures is to make “TERFs” feel excluded and fearful. 

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. 

Single Sex Services: 10 Reasons why the Statutory Code should now be updated

The Equality and Human Rights Commission (EHRC) has released new guidance for single sex services regarding how lawfully to treat people of the opposite sex who have the protected characteristic of gender reassignment. The EHRC is mandated by the Equality Act 2010 to write guidance to help organisations understand how to apply the Act correctly.

Legal Feminist welcomes this guidance as there are problems with the EHRC’s 2011 Statutory Code (the Code). Other legal commentators, by contrast, say the new guidance is out of step with the Code. This article will set out why we consider the new guidance to be correct and why the Code needs to be updated.

In terms of accessing single sex services, we consider it fundamental that every service-user should know, at the point of access, and preferably beforehand, if spaces and services are single-sex or mixed-sex.

  • If a service provider allows people of both sexes to use a service together, it is not providing a single-sex or separate-sex service.
  • A GRC may change an individual’s state-recognised sex, but if a service-provider allows him or her to use a single-sex or separate-sex service for the opposite sex then it becomes a mixed-sex service. 

The Equality Act allows exceptions from its prohibitions of discrimination

The Act sets out exceptions where it is not unlawful to treat people of different protected characteristics differently because of those characteristics. We see this with age, where entry to certain services is restricted to particular age groups and also with sex. In both cases, the exceptions apply so long as the restriction is objectively justified as a proportionate means of achieving a legitimate aim.

Single-Sex Service Exceptions

There are three types of exception in the Equality Act (EA) which allow a service provider to provide a single-sex service. The first two apply to exclude men from women’s services and vice versa. The last allows the service-provider to continue to provide the same single-sex service despite gender reassignment. When an opposite-sex person has a Gender Recognition Certificate (GRC), the exclusion cannot operate on the basis of sex but instead on gender reassignment. The reason for this is that a GRC means that the differenting factor can no longer be sex (because legally the opposite-sex person is now considered the same sex). In all exceptions the decision to be single-sex must be objectively justified.

The 2011 EHRC Code provides nine positive examples of how service providers might successfully invoke the first two exceptions in order to ensure a single sex service. The examples demonstrate: 

  • Unconditional recognition of sexed needs, 
  • Consideration for effective and practicable service provision,
  • Consideration of intersectional protected characteristics  
  • Acceptance of intimate sexed needs in special care, supervision or attention,
  • Acceptance of female objections to male presence and contact


None of the examples require service users to justify their sexed needs or objections to the opposite sex’s presence or contact. There is no assumption that women are bigoted for their needs or objections.

Maintaining single-sex services regardless of GRC

Once a person has a GRC, the state recognises a change of legal sex status. A service provider therefore needs to apply the gender reassignment exceptions (set out in Schedule 3, part 7, para. 28 EA) in order to provide a single-sex service. These allow separate-sex services and single-sex services where objectively justified in relation to  gender reassignment. This last exception (relating to gender reassignment)  is badly handled by the Code. 

The standard of objective justification required for excluding male people with GRCs from female spaces should not be any different from those requiring exclusion of men from female spaces. The wording of the exceptions is replicated, so the exceptions should be subjected to the same test of objective justification.

The 2011 Code ought to provide user-friendly guidance to putting the Equality Act into practice but, in our view, it does not do this and makes ten errors, these are:

  1. Failure to Distinguish GRC Holders 

It fails to make a distinction between people who have the protected characteristic of gender reassignment but no GRC and those who have both. This is important because it determines whether the single sex exceptions apply on the basis of sex or gender reassignment. Remember the sex based exceptions are well explained with positive examples of how they work by the 2011 Code whereas the gender reassignment based exceptions are inadequately explained.

2. Departs from the Equality Act Explanatory Notes

The 2011 Code provides one example of a service provider’s supposed failure to use correctly the exception in relation to gender reassignment and no examples at all of proper uses of the exception. This is in striking contrast to the guidance for the other exceptions, which set out nine positive examples of situations where it will be lawful to use them.

This also contrasts with the approach in the Explanatory Notes to the EA, which give the example of a group counselling session provided to female victims of sexual assault, in which it would be permissible for organisers to prohibit a male to female transsexual person from attending as they judge that female clients may not attend. The 2011 Code adopts other examples of lawful discrimination in the Explanatory notes where they relate to sex based exceptions , but fails to use this one in relation to gender reassignment. 

3.         Impractical 

The Code states that the Paragraph 28 exception should only be used in exceptional circumstances, without describing such circumstances. This creates a higher bar than for the previous two exceptions, which relate to ordinary run-of-the-mill scenarios. There is no requirement in the statute for this exception to be treated differently from the others.

4.         Unworkable

It sets out that this exception should be applied on a “case by case” basis but does not give an example of any policy that is capable of being applied in such a way. There is nothing in the EA2010 that requires this application, in fact the case of Homer v West Yorkshire Police regarding objective justification warns against an ad hominem approach as potentially discriminatory (para 25).  

Case by case can only be workable if “case by case” relates to the particular services provided rather than the service users. as acknowledged by the Women and Equalities Select Committee.. Naomi Cunningham has already written for Legal Feminist on this  topic.

5.         Refers to out-dated case law

The Code regresses to the pre GRA 2004 position as per the A v West Yorkshire case, which we consider to rely upon the sexist criteria of being considered adequately feminine or masculine in presentation to “pass”. Relying upon unlawful sex discrimination will in turn render a single sex policy unlawful.

6.         Unrealistic

Many people detect biological sex even in those who try hard to pass.

It is impossible to base a functional policy on subjective perceptions of sex, or on someone being “indistinguishable” – and most transgender people are not. Many other service users will accurately perceive their biological sex and feel that the service provider is mistreating them in pretending to operate a single-sex service.

GRCs were intended to ensure that transsexual people who were undetectable as the opposite sex could keep their actual sex a secret. They were never intended to make others pretend that they do not perceive sex.

7.         Removes Consent

Women accessing a single-sex service are not consenting to share it with the opposite sex. Labelling a changing room “women only” but admitting any male person whom the service provider deems to “pass” is tantamount to using deception to obtain the consent of the women who use that facility. It is unacceptable that some women – in particular traumatised women and some religious women – will self-exclude from such facilities. 

8.         Encourages harassment

The EHRC Code suggests that service-users’ perceptions of sex may be bigoted. (Para 13.60 of the EHRC statutory code states that “Care should be taken in each case to avoid a decision based on ignorance or prejudice.”) 

This seems to have encouraged service providers such as the Government Legal Service to create a policy that employees who state that they want single-sex facilities should be investigated and potentially disciplined for requesting them. This goes far beyond the requirement for objective justification in the EA and becomes harassment of employees seeking to assert their own sex-based rights.

9.         Lacks of consideration of dignity, privacy and previous trauma

Providing cubicles within a mixed sex-changing room does not address everyone’s needs. Many people still want to know whether the room in which the cubicles are situated is single-sex or mixed-sex. Knowing that there is a man in the next cubicle will make many women and girls uncomfortable enough to self-exclude. It may re-traumatise those who have previous experience of sexual abuse and it may mean that women from certain cultural and religious backgrounds do not feel able – or even are not allowed by their families – to use the services.

10.      Lacks consideration of Violence against Women and Girls

The vast majority of violence committed against women and girls is on the basis of sex by male perpetrators. Abuse ranges from the physical to the psychological and includes the use of smart-phones and other technology to take photographs and films of women and girls. The 2011 Code does not acknowledge these abuses and was written before recording devices were so widely available. Nor does the Code acknowledge that there is no evidence basis to show that people will behave any differently from others  of their natal sex category in this regard.

But Is It Cricket? Giving Women A Sporting Chance

Lia Thomas, a swimmer, born male, is now routinely winning women’s swimming races in the United States. Soon we are bound to see a similar situation in the UK. Do the female athletes who lose team medals and opportunities in these situations have any legal recourse?

I think they may have. I’m going to consider a hypothetical. 

 I am consulted by Jane, a top female sports woman. She is third best in the country in her sport, which combines speed, strength and skill. Normally this means she makes the big competitions for her home nation, England as there are three places in the team. This year the rules were changed to allow trans women to compete in the women’s competition if they met a requirement to lower testosterone to a certain level for one year. As a result, May, a trans woman, is eligible for a place on the women’s team in Jane’s sport. May matured through male puberty before transition, and was an elite male athlete in the same sport as Jane, and under the new rules is certain to make the top 3.   Jane, as the fourth-placed athlete in this event, will miss out on competing for her country. She feels the rules to be unfair and she will lose out financially and in sporting terms.

I am not in this piece going to discuss the merits of Jane’s view, but how a claim under the Equality Act would be framed. 

I will assume the identity of the organisation she will challenge is clear and her claim is in time. I will also assume the organisation is not a public body so PSED not engaged, but the competition organiser is a provider of services to the public, so Jane can bring her claim in the County Court in England and Wales or the Sheriff Court in Scotland under part 3 of the Equality Act. 

So, with any claim where the problem is a rule (or rule change), the most obvious starting point is indirect discrimination, under s19 Equality Act.

19 Indirect discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

In this case we have a “provision, criterion or practice” of allowing not just biological females into the sport but also MTF trans identifying people who meet certain criteria relating solely to testosterone levels.

The rule applies to all competitors, whatever their protected characteristics. It will be indirectly discriminatory on grounds of sex if it puts the women to whom it is applied at a particular disadvantage compared to the men to whom it is applied; and puts Jane at that disadvantage; and the competition organiser can’t show that it is a proportionate means of achieving a legitimate aim. 

Does it put Jane, as a biological women, at a particular comparative disadvantage?  It doesn’t have to be all or even most women. I suspect she would point to evidence that she, as with the average biological woman, is likely to have smaller heart, lung capacity, shorter limbs, difference in pelvis, etc than a comparable trans woman who had gone through male puberty. It can even affect only a few women, as long as there is  a causal link to the protected characteristic (this is known as small group disadvantage).

Jane’s argument would presumably be that the difference in performance is so great between the average elite athlete female and the average elite athlete male who has gone through male puberty (even those whose testosterone is lowered) that it makes the rule inherently discriminatory.

So her argument is she is put at that disadvantage.

So then the onus is on the organisation who made or apply the rule to show it is “a proportionate means of achieving a legitimate aim”.

Obviously a court would consider all the technical, sociological, scientific evidence for and against such a rule.

Now this is where s 195 of the Equality Act comes in.

In discrimination law, the starting point for any rule generally is no discrimination at all. So one category open for all. However, that would be wholly unworkable. It would mean no Paralympics, no women’s sport or no age-restricted events. So Equality law recognises that it is legitimate to impose some categories to allow groups who would always lose if young, non disabled men could always compete, to limit their events to people of a particular protected class.

S195 Equality Act identifies how one set of categories, relating to sex is permissable:

195 Sport

(1)A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

(2)A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a)fair competition, or

(b)the safety of competitors.

(3)A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.

Ignore the reference to gender, technically they mean sex.

Whilst this, on the face of it look permissive, when considered within the context of an indirect sex discrimination claim, it could be a part of the duty not to indirectly discriminate against biological women.  It relates to the issue of whether the rule is determined as “a proportionate means of achieving a legitimate aim”. The onus is on the sports body to show that it is.

The fact that s195 is written into the Equality Act is a strong indication by Parliament that use of such an exception is not only okay but could be necessary to achieve fair competition. Consideration of why the sports organisation did or didn’t use the exception(by reference to strong evidence from consultation, research and analysis from all potentially affected people) will be key.

I cannot predict how any particular claim might be resolved (though studying the recent World Rugby process  here for determining categories is instructive). But given that women’s sport has for the first time started to be commercially important, it is very likely that a claim for indirect sex discrimination will be made soon.

Admission to women-only spaces, and “case by case” assessment

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.

If I were Ruler of the World….(part 1)

On twitter, after a period of great exasperation I wrote a thread that started: “I am coming to the view that, if or when I am ruler of the world, anyone who wants to speak about UK Equality[1] law matters on social media has to first sit an exam which I will set.”

I then set out a list of six questions to be answered, in this mythical situation.  Then I promised to provide suggested answers, so here goes with answers 1 and 2 (I will answer the others in later blogs):

1.  What are the nine protected characteristics?

In the Equality Act 2010, nine characteristics were identified as ‘protected characteristics’. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health. They are:

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

They are then defined in ss5-12 and 17 and 18 of the Act.

It was pointed out by my good friend, lawyer Jo Chimes that, as I mentioned UK, there is a 10th in Northern Ireland, namely political opinion (see The Fair Employment and Treatment (Northern Ireland) Order 1998).

So, if you want to bring a claim under the Equality Act you have to show how the conduct complained was linked to one of the protected characteristics; and how you are protected by the Act.

2What are comparators and why are they important?

If you want to show you’ve suffered unlawful discrimination or bring an equal pay claim, you need to compare your treatment with the treatment of someone else who doesn’t have the same protected characteristic as you. The Equality Act calls this person a “comparator”.

So, a women arguing she was overlooked for a payrise because of sex discrimination would need a man as a comparator. If arguing it was because of her race, it would need to be someone not of her race and so on. You cannot use someone who shares your protected characteristic as a comparator.

In direct discrimination claims (s13), you have to show evidence of less favourable treatment (because of a protected characteristic) than a valid comparator. The comparator can be a real person, similar in all material circumstances but who doesn’t share your PC, or a hypothetical comparator (a thought experiment based on what it is likely to have happened in the same situation if there was a real comparator). Lawyers in these cases can spend considerable time arguing about what is a valid hypothetical comparator for the particular circumstances.

In Chapter 3 of the Act, equal pay claims require a real comparator; so a hypothetical comparator is not allowed. There is some concern that if gender (actually sex) self ID is introduced, this could defeat an otherwise valid, individual equal pay claim.

In indirect discrimination claims (s19 ) and duty to do reasonable adjustments (s20), comparators are also required but in a way too complex for this introductory exam.

So, those are my suggested answers. Will post parts two and three, when I get some time.


[1] [1] Ive correct my spelling mistake from the original

The new interim version of the Equal Treatment Bench Book:

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 26 of chapter 12 states,

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

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

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

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

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

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

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

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

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

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

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

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

At paragraph 78, the new ETBB states,

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

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

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

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

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

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

Letter to the Lord Chief Justice

The Right Honourable

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

Strand

London

WC2A 2LL

27th August 2021

Dear Lord Chief Justice,

The Judicial College’s Equal Treatment Bench Book

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

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

The Bench Book states,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours sincerely,

Rosemary Auchmuty, Professor of Law

Sue Bruce, Solicitor

Thomas Chacko, Barrister

Naomi Cunningham, Barrister

Peter Daly, Solicitor

Eileen Fingleton, Solicitor

Francis Hoar, Barrister

Belinda Lester, Solicitor

Audrey Ludwig, Solicitor

Helen Nettleship, Barrister

Maureen O’Hara, Senior Lecturer in Law

Peter Ramsay, Professor of Criminal Law

Angela Smith, Solicitor

Robert Wintemute, Professor of Human Rights Law


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

Sex Matters in the Board Room – a joint Legal Feminist and Sex Matters briefing

You may recall that Legal Feminist responded to the FCA’s recent consultation on diversity on listed company boards LF FCA consultation. The FCA’s proposals would affect all listed companies, not just those in the financial services sector.

We welcome D&I initiatives and are pleased to suggest an alternative to the FCA’s proposals that is consistent with the current law on every footing – Companies Act, Equality Act, Gender Recognition Act and UK GDPR. It would also result in data being reported on a basis consistent with the ONS and other data reporting initiatives.

Legal Feminist has teamed up with Sex Matters to produce a joint briefing for those new to the topic, explaining the issues with the FCA’s proposals and the advantages of our suggested alternative. Although the consultation has closed, there is still time for those in the corporate and finance sectors to make their views known. If you are in those sectors and/or have contacts who would be affected by the FCA’s proposals, please use the Sex Matters emailer to send the briefing to your contacts either in your own name or via Sex Matters.

See here for the Legal Feminist/Sex Matters briefing.

See here for a link to the Sex Matters blog which explains how you can sign up to help distribute the briefing to those who need to read it.

Thank you!

Conversion therapy: the path to good law

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
  • clear proposals 
  • 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 

That means:  

  • 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.

Conclusion: the Denton’s playbook 

In 2019, law firm Dentons and others published a guide to campaigning strategy for gender self ID. The report says:

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. 

Legal Feminist responds to FCA consultations

Legal Feminist has responded both to the FCA consultation on diversity & inclusion in listed company boardrooms and to a joint Discussion Paper of the Bank of England, the Prudential Regulatory Authority and the FCA on diversity in the financial services sector. In both cases, while we applaud the intention behind the proposals, and are strong proponents of data-driven policy-making, we felt that the way in which those intentions were to be reflected in rules and policy rendered the proposals at best ineffective and at worst dangerous.

Remarkably, the FCA’s proposals on “gender” reporting failed to disclose relevant conflicts of interest (Stonewall) and made no reference to existing legislation that already requires many listed companies to report their board composition by sex (take a bow, drafters of section 414C(8) Companies Act 2006).

PDFs of our responses can be found at the end of this blog. Below is the Introduction and Executive Summary of our response to the FCA consultation.

Introduction
Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including company law, corporate finance, financial services, employment, data protection and privacy, discrimination and human rights law. Our range of specialisms enables us to consider holistically the issues raised in the Consultation Paper (CP) and our collective experience enables us to comment on the practical implications of some of those issues. As a non-aligned collective of lawyers from a range of backgrounds, we do not represent any particular firm or issuer and are therefore well-placed to give candid feedback on the issues raised by the CP.

We responded to Discussion Paper 21/2 published by the Prudential Regulatory Authority, the Bank of England and the Financial Conduct Authority (FCA). To the extent the DP and CP raise common issues, we may address those issues in the same terms.

As feminists, we generally welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support proposals that seek to gather data to support policy making, provided this is done carefully. However, we recognise that such initiatives engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.

As the FCA has no direct responsibility for D&I matters, we are concerned that it does not have access to the particular expertise in international employment, data protection and privacy or human rights law required for a full consideration of the issues raised by the CP. Regretfully, we have formed the view that the proposals outlined in the CP are flawed, perhaps fatally, in view of the difficulty of reconciling them with other laws and regulations in these specialist areas.

Past practice in relation to regulatory intervention in matters of Environmental, Social and Governance has tended towards entrenching rules or policies developed by groups with relevant expertise – for example in relation to the codification in the Listing Rules of recommendations of the Task Force on Climate-related Financial Disclosures. We recommend that the FCA consider appointing a working group, comprising stakeholders with a range of expertise and interests, to consider its proposals further. Members of the Legal Feminist collective would be glad to serve on such a working party.

A number of our concerns are relevant to more than one consultation question. Accordingly, we have framed our response as a general discussion of some of these issues, to which we then refer in answers to the specific consultation questions. We have also included an Executive Summary.

Executive summary

The potential consequences of the proposals in the CP include:

  • confusing disclosures in annual reports as a result of the FCA’s failure to take account of the existing mandatory disclosure regime in the Companies Act 2006
  • poor response rate and/or non-standardised disclosures as a result of incompatibility of data collection and reporting with data protection rules of the UK and other jurisdictions
  • individuals with certain protected characteristics being easily identified, giving rise to issues of privacy and even personal safety
  • poor quality disclosures as a result of failure to take account of different ethnicity considerations applicable to global and overseas Issuers
  • poor quality data resulting from failure to collect data on sex on a disaggregated basis
  • difficulty of comparing data to other data sources, such as the UK Census, resulting from self-identification of gender (Self ID)
  • Issuers being exposed to possible discrimination claims from employees as a result of seeking to comply with rules based on Self ID
  • breach of the FCA’s Public Sector Equality Duty set out in the Equality Act 2010 (EqA) through the adoption of Self ID, which is not recognised by the EqA

For the full text of Legal Feminist’s responses to the consultation paper and the discussion paper, download the PDFs below.

Two Key Questions

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

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

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

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

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

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

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

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