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Transphobia, Feminism and the Liberal Democrats

By Audrey Ludwig, Solicitor and Tim Pitt-Payne QC

On Saturday 19th September, the Liberal Democrats published a statement setting out their understanding of what constitutes transphobia.  It is a remarkable document, deserving careful attention.

Debates about whether a particular view, person, or body is transphobic often misfire, because the participants are operating from unstated but differing definitions of transphobia; they talk past one another and make no progress.  In principle, a discussion about the meaning of transphobia could be useful and helpful. 

But the Liberal Democrat document is not intended merely as a contribution to wider social debate.  The online statement announcing its adoption made clear that it would be used to support the Party’s disciplinary processes.  In other words, individuals who are guilty of transphobic behaviour – as defined in the document – could be suspended from the party or expelled. 

The document is in three parts: a brief definition of transphobia; further discussion of that definition; and an appendix of examples.

The brief definition is this:

‘Transphobia’ is the fear or dislike of someone based on the fact they are trans. Transphobia, whether through words or action, may be targeted at people who are, or who are perceived to be, trans or trans allies.

In the subsequent discussion of this definition, we are told that the term “trans” is “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.” There is an express statement that people are not required to have undergone any medical or social transition to be considered trans, and a cross-reference to the definition of “trans” in Stonewall’s glossary.

Four non-exhaustive examples of transphobic behaviour are then given, some of which go well beyond what would be regarded as either unlawful harassment on grounds of gender reassignment or an objective threshold standard for hate crime.  The examples are:

* attempting directly or through advocacy to remove trans people’s rights;

* misrepresenting trans people;

* abuse of trans people; and

*  systematically excluding trans people from discussions about issues that directly affect them.

These are more fully explained in the appendix.

As to the first example, there is no further explanation of what type of rights are being referred to.  No doubt advocating changes in the law that were regarded as weakening the position of trans people – for instance, arguing that the conditions for a GRC should be more restrictive – would come under this heading.  But does this example go further?  Given the breadth of the document generally (see further below), it is likely that the term “rights” would not be understood solely in legal terms, but would also cover anything that trans people are currently able to do as a matter of practice.  For instance, arguing for the exclusion of trans women from women’s rugby would probably be viewed as “attempting to remove trans people’s rights”. 

The document goes on to distinguish between different levels of blame.  For genuine “errors and misunderstandings”, an apology or retraction will usually suffice.  However, repeat offenders should be dealt with more severely: “this is especially true if they have been challenged by others, and they have been pointed to resources to help them learn about trans rights and transphobia.”  In other words, re-education and a chance to repent are to be the first resort,  with the possibility of disciplinary action and expulsion to follow for those who persist.

The Appendix then sets out a number of further examples of transphobic behaviour, again making clear that they are not exhaustive. 

Under the heading “denying trans people’s gender identity or refusing to accept it”, there are references to deadnaming, misgendering, and mockery, followed by this passage:

Using phrases or language to describe trans people which are designed to suggest that trans people are a separate category of person from the gender they identify as or that their gender identity is not valid. Current examples include referring to a trans woman or non-binary person as a “biological man” or a trans man or non-binary person as a “biological woman”, which eradicates the trans person’s gender identity in favour of their biology at birth.

The first sentence is clearly intended to enforce the orthodoxy that trans women are women and trans men are men.  Any deviation from this – for instance, “trans women are not literally women, but (with limitations) ought to be treated as if they were” – would doubtless be seen as treating trans women as a separate category from the gender with which they identify. Taken at its highest, it could be said that this definition treats both the Equality Act and Gender Recognition Act as “transphobic”, since both contain provisions identifying circumstances where trans people are treated as a separate category.

The second sentence is even more striking.  In some contexts, it requires the denial of simple biological fact.  This is the case, even if you believe that it is possible for a human being to change their biological sex – given that very many trans people will have undergone no medical transition whatsoever, as the document itself expressly recognises.  To say that a person, or a group of people, identify as female but are biologically male is not only a factual statement, it is in some contexts a highly relevant statement: for instance, when considering how they should be housed within the prison estate, or whether they can fairly compete in sport against natal women.  Of course there are contexts in which to refer to biological sex would be hateful:  just as, when adoptive parents proudly describe their children’s achievements, it would be hateful to respond, “But you’re not their biological parents.”  But in some contexts – for instance, assessing the risk of inherited health conditions – biological parenthood is relevant:  and likewise, biological sex.

Given the way in which this paragraph is drafted, it is hard to see how there could be any meaningful advocacy of gender critical views within the Liberal Democrats.  In particular, it is hard to see how one could either oppose gender self-ID, or advocate for maintaining  sex-based rights or single sex spaces and facilities, or for keeping the provisions in the Equality Act that make such things possible.  The document therefore effectively requires certain policy positions to be supported, on pain of a finding of transphobia and potential expulsion.  Dissent is to be rooted out, not by reasoned discussion and debate, but by the exercise of power.  It is authoritarian, and illiberal, for a party to close down internal debate in this way on issues of live political controversy.   

Under the heading “misrepresenting and excluding trans people”, one finds this example:

Making mendacious, dehumanising, demonising, or stereotypical allegations about trans people or their cisgender allies. This includes spreading the idea of a “trans conspiracy” which asserts undue influence over media or government or claiming that cisgender allies support trans rights initiatives out of fear or bribery rather than a genuine belief that trans rights are human rights.

There is a sad irony about the final sentence.  The very existence of this document will foster the making of such claims.  When Liberal Democrats advocate for trans rights, they can be expect to be met with the retort, “you’re only saying that because your party says that you must”. 

In all of this discussion, there is a glaring omission.  At no point is there any recognition of any potential conflict between the rights and interests of trans people and of natal women. Dealing with competing rights is a familiar aspect of human and equality law: for instance, a policy benefiting one protected class may indirectly discriminate against another, requiring a balance to be struck.  The document allows no space for feminist advocacy that recognises the need for such a balance.  There is no acknowledgment whatsoever that campaigning against self-ID, or for sex-based rights, can be motivated by something other than prejudice or bigotry.  The implied message of the document, therefore, is that when the interests of women come into conflict with those of other groups, then it is for women to give way without question or complaint.  Not only is this an illiberal message:  in its practical effect, it is a strikingly misogynist one.

Self-ID dropped, says the Sunday Times

News from the Sunday Times that the proposals to amend the Gender Recognition Act to allow a change of sex on a birth certificate on application (“self-ID”), in place of a dysphoria diagnosis, have been dropped, replaced by a promise to reduce the current £140 fee.

There has been enormous controversy around the proposals, which gained far more public interest than most legal reforms when Stonewall called not just for self-identification but also for the abolition of single-sex exceptions to the Equality Act 2010. These represent the strides made over the twentieth century for women to access public life, public space, spaces in which to recover from male violence, and sports, among others. Needless to say, many women’s groups were aghast at the prospect of these exceptions being removed and a return to the “unisex” – in practice, male – spaces of the nineteenth century.

There was also disquiet over the possibility of the process being abused, and of the practical obstacles to women’s groups distinguishing between a person who identified as (but took no steps to look like) a woman, and a man. Such instances might not be common, but the law must cater responsibly for the uncommon but reasonably foreseeable.

Perhaps now that there is clarity over self-ID, there is scope for truly radical legislation and guidance capable of support across the feminist and transgender communities. We could start with proposals for CAMHS funding to be doubled; mental health support for adults to be provided within a strict six month window; improvements to the public sector’s adherence to PSED to ensure quality Equality Impact Assessments are undertaken; free legal support for anyone who has been unlawfully discriminated against by an employer; the abolition of gendered work and school uniform; and access to free education for young adults whose school-age education was disrupted by gender difficulties or sexual harassment.

Discrimination: Only Unlawful if It Is Unlawful

Discrimination is only unlawful if it is unlawful (or why mantras cannot be relied upon when it comes to legal advice)

My title feels like a bit of an obvious statement – but spend any time on current debates and it becomes a useful reminder. 

Discrimination is a word that has shifted in popular meaning. It relates to making choices and used to be regarded as having a more positive definition than currently. It used to suggest being discerning, recognising and understanding the qualitative difference between one thing and another. Now it is generally accepted as negative and relating to prejudice or stereotyping. Positive or negative, though – when is it unlawful?

Law is often complex, and equality law particularly so. But you wouldn’t get that from the mantras and soundbites we are exposed to in the knotty conflict between trans demands for inclusion and women’s sex based rights to single sex services and sports. Discrimination is a word we hear a lot.

Take rugby. The BBC reported that “World Rugby is considering a proposal to ban transgender athletes from women’s contact rugby due to safety concerns that they say have emerged from recent independent research, claiming there was likely to be “at least a 20-30% greater risk” of injury when a female player is tackled by someone who has gone through male puberty.

Its current rules allow trans women to play as long as they suppress their testosterone levels for at least 12 months, in line with International Olympic Committee policy. 

But the governing body has undertaken a “comprehensive review” of that policy, telling BBC Sport in a statement that it was not working.

“The latest peer-reviewed research confirms that a reduction of testosterone does not lead to a proportionate reduction in mass, muscle mass, strength or power,” said the statement.

“These important determinants of injury risk and performance remain significantly elevated after testosterone suppression.

“This presents a clear safety risk when transgender women play women’s contact rugby.”

This is presented by trans lobbying groups as “discriminatory” (by which they mean unlawfully discriminatory) and “transphobic.”

But one of the early lessons one learns as a specialist discrimination lawyer is that the equation “I have a protected characteristic and a bad thing is happening to me = unlawful discrimination” is a commonly held but also fallible view. Bad things happen all the time to people but it is not automatically unlawful or even to do with their protected characteristic. 

So a useful list of things to note when initially considering if something is unlawful discrimination:

Firstly, if the cause of the harm is related to something which is not a protected class, then it is not unlawful discrimination. So not being offered a job because you have tattoos or are left handed may justifiably feel unfair. A recent example was Conisbee v Crossley Farm where the claimant’s brand of vegetarianism was deemed a lifestyle choice not a protected philosophical belief, meaning the discrimination was lawful.

Secondly if the bad thing didn’t happen because of a particular protected characteristic it is not unlawful discrimination – like being made redundant because the factory is closing; or not being able to dine at the Ritz Hotel because you cannot afford the cost. It might be contrary to another law but this article is only looking at equality law. This is because the act alleged to be discriminatory needs to be (at least substantially) because of that protected characteristic.

Thirdly even “a bad thing is happening to someone because of their protected characteristic” doesn’t always equate to unlawful discrimination. The UK wide Equality Act 2010 is full of exceptions to the general rules and defences to what would otherwise be unlawful discrimination. 

These exceptions are extensive and cover myriad areas: decisions of judges in court; service in the armed forces being excluded from the employment provisions on disability; allowing religious groups to appoint only a straight man who is not divorced as a priest; and many, many more. 

Further, if there is a conflict of rights, this is to be balanced to ensure the most equitable outcome. However, it means that one party, despite having a protected characteristic and suffering an adverse outcome, is judged by the court not to have suffered unlawful discrimination. Examples include Ms Ladele who lost her job as a Marriage Registrar because she would not marry same sex couples because of her religious belief; or Mr Lee the gay man whose request for a slogan iced onto a cake was declined in the Ashers Bakery case. Both had a protected characteristic and something bad happened to them linked to it, but they lost.

Finally for direct discrimination (but not indirect discrimination) there is the so-called “bastard defence.” If someone treats everyone equally dreadfully, then it is not “less favourable treatment” but equal treatment. 

So back to rugby. First thing, how does the law currently permit single sex rugby? You would think that as we generally disallow discrimination on grounds of sex, then people of either sex could insist it was direct sex discrimination not to let a person of the opposite sex play in a single sex team. 

However, there is an exception allowing for single sex teams. S195 Equality Act says :

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.

This tells us that if the evidence shows if the sport is gender affected (as defined in s195(3)) to ensure fair competition or the safety of competitors, then, if the organisers make it single sex, it is not unlawful discrimination. 

Excluding a trans woman from the women’s team is not discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not able to play on it, but because of their physically male sex. 

Further, it is arguable that if the organisers, despite evidence of safety risk or unfairness, choose not to use the exception in s195, it may in turn be unlawful indirect sex discrimination against a natal woman who is significantly disadvantaged, on grounds of safety or fairness, by the policy of letting trans women play rugby.

So, contrary to those claiming it must be discrimination, excluding trans women from women’s rugby may not be unlawful discrimination. It may feel unfair, hurtful or exclusionary but it is not unlawful discrimination. Indeed to do otherwise may itself be unlawful discrimination against natal women.

Obviously, every issue is determined by the specific evidence and until the court make a final judgment one cannot say definitively in any case whether something is or is not unlawful discrimination. Lawyers can advise based on interpretation and precedent. However, what we can say for certain that discrimination is only unlawful if it is unlawful.

‘Trans customers: A guide for door supervisors’

This guidance document produced by the Security Industry Authority and published on the Home Office website in October 2018 has recently been publicised by @ripx4nutmeg.

There’s already an excellent thread taking it apart here, so I’m mainly adding my voice to points already well made elsewhere. I’m going to do that in the form of a series of quotes from the document, followed by my comment.

It has been written in consultation with trans people and groups as well as security industry operatives.

Comment There is no mention of consultation with any group representing the interests of women.

Take at face value what a reasonable person is telling you about what they need and who they are.

Comment How do you tell whether a particular person is reasonable? If someone who is obviously a man tells you he is a woman, does that give you any clue?

Don’t expect a trans person to look or sound a particular way.

Comment Ah, apparently not. This seems to mean – and certainly may be read as meaning – that trans people need not make any concessions to dressing as or looking like members of the opposite sex in order to claim, irrefutably, to be trans. So if a large muscular man dressed in masculine clothing and wearing a beard tells you that he is in fact a woman, the previous quote tells you that you should take what he tells you at face value.

Allow the customer to choose whether they want to be searched by a male or female member of staff.

Comment Think a bit about what this means. There are no rights without corresponding duties, so if your customers have a right to be searched by a male or female member of staff, then your staff must have a duty to perform those searches. If you’re a business owner, you’d do well to take employment law advice before complying with this guidance. You may risk indirect discrimination, sexual harassment or constructive dismissal claims from your female employees if you require them to search any male customer who states a preference to be searched by female staff.

If a trans person says that a particular toilet is appropriate for them, then that is the appropriate toilet for them.

Comment Business owners should take legal advice before complying with this guidance, too. If your signage indicates separate male and female toilets, you are representing to your female customers that the female toilets will only be used by other women. That may be essential to their feeling safe and/or comfortable using those toilets. Women being in general substantially  more vulnerable to male violence than vice versa, a woman who is upset – or made to feel that she can’t use your services at all – because you have ceased to provide female-only toilets may have an indirect discrimination claim against you. If she has suffered harm – e.g. voyeurism or an assault – because of your policy, she may have other claims against you.

It is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment.

Comment This is true in general (subject to exceptions), but not relevant to the guidance above. Excluding a trans woman from the women’s toilets isn’t discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not welcome in the ladies, but because of their physically male sex. Schedule 3 to the Equality Act exempts justifiably sex-segregated services from the general prohibition on direct sex discrimination; and the indirect discrimination provisions of the same Act make it legally risky, at least, not to make use of the Schedule 3 exemptions where they are needed.

For example, this means that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action being taken against the pub, club or venue you work at.

Comment This is unfortunately true, because trans people have been told over and over by those who should know better (including, shockingly, the EHRC ) that they have stronger claims to female-only services and spaces than they do.

There are two points to note here. The first is that ‘a risk of legal action’ is not the same thing as ‘a credible risk of successful legal action.’ The second is that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action against your pub, club or venue – but so too may exposing your female customers to the risks associated with letting male-bodied people use your women’s toilets.

Consult a discrimination lawyer for guidance on which risk is the greater. Consult your conscience on whether to prioritise the safety and dignity of your female customers, or the feelings of your male customers. 

Meshed Up: The Treatment of Women Following Mesh Surgery

Victoria Phillips, partner and head of employment rights (client relations) at social justice law firm Thompsons Solicitors, discusses how women have been treated following complications from surgical mesh.

Over the years, there has been growing awareness and press coverage surrounding the issues of surgical mesh, particularly following the publication of the Independent Medicines and Medical Devices Safety Review on 8 July 2020, led by Baroness Cumberlege. The First Do No Harm report looked into three medical scandals: primodos, a hormone pregnancy test associated with birth defects that was withdrawn in the 1970s; sodium valproate, an anti-epileptic drug, which can harm children during pregnancy; and vaginal mesh implants, a cause of unbearable pain and life-long complications. 

We represent more than 200 women in vaginal mesh surgery claims so, in terms of the review, our focus has always been on this medical intervention. But the commonalities that bind the three are far more staggering than their differences. The review had many overarching themes but the concerns of female patients being ignored by health professionals was a significant common denominator, which exposed an institutionalised inability for the healthcare system to listen to women.

At Thompsons Solicitors, we’ve witnessed how male surgeons patronise female patients and dismiss legitimate concerns in a way that we’re convinced would never happen if the patient was a man. There has been an overriding  paternalistic approach to female issues and patients have had no choice but to trust their surgeon, despite their body telling them something quite different. 

If mesh was to be inserted anywhere near male sexual organs, I believe there would have been rigorous and comprehensive pre-market testing before it was even hinted at as a potential treatment option. If there was even a slight risk to a man’s ability to function sexually , mesh probably would have been dropped far sooner, or more likely, never considered an option in the first place. 

It begs the question that should a man have been put in the same position, would he have been given all of the necessary information? Would he have been listened to when he voiced concerns about the pain he was feeling after his mesh surgery? Would his medical team have looked into the issue thoroughly and found a suitable alternative? Looking at the findings of the review and speaking to our clients, the answer is a resounding yes. Instead, women were told it was “all in their head”, or part of the menopause, and often referred for counselling in lieu of any effort being made to discover the true cause of their agony. 

Many who had mesh surgery didn’t experience issues until years later, but some reported pain and complications immediately after regaining consciousness from their surgeries with assurances it was completely normal and in time would wane. For thousands of women, it never did. They spoke to their GPs, numerous surgeons and other healthcare professionals but were often dismissed  when they suggested their pain was from mesh. One client recalled her surgeon telling her parents she was inventing her pain because of school-related anxiety. That client has since been told the rectopexy surgery she had at just 15 years old, which has left her self-irrigating every night since, was unnecessary. She must continue to self-irrigate for the foreseeable future, unless she agrees to have a colostomy bag. She is just 22 years old. 

The review team heard hundreds of accounts across the country on all three health scandals and Baroness Cumberlege summed it up by saying she “couldn’t believe that people had gone through so much agony and suffering and had been ignored” and that “much of this suffering was entirely avoidable.” 

The life-changing disabilities our clients have suffered from mesh implants has been heart-breaking to see. There has been a systematic failure with a lack of warning from both the manufacturers and the surgeons and hospitals who carried out the operations, without adequate consent. When they tried to complain, our clients faced rejection and belittlement while being wracked with pain. 

Baroness Cumberlege didn’t pull any punches in her review. The changes she called for are too late for those we represent, but they offer the possibility of real reform. This is not just about the NHS. Her recommendations must equally apply to the private healthcare sector, which is every bit, if not more, complicit. 

An apology to the women and men who have suffered, as well as their families, is as welcome as it is overdue, but it won’t bring back the people our clients once were or the childhoods or relationships they have lost. 

To ensure this is not a further slap in the face for our clients, and others affected, the promised changes must be swift, real and resourced from new money, not recycled funds taken from other parts of the health service.

What those who have suffered for so long deserve is decisive action that leads to real change. And that must start without delay.

My body, my choice: privacy, consent and compulsion in personal care

Fortnum v Suffolk County Council is a first instance decision of an employment tribunal sitting in Bury St Edmunds that is often mentioned⁠1 in support of a claim that trans women trans-identifying males already have a right to be treated in all respects as women, even where that impinges on the privacy and dignity of natal women. So far as I can discover, the decision has so far escaped the attention of legal commentators. That’s not surprising, because decisions of the employment tribunal have no weight as precedents, so commentators rarely bother analysing them.⁠2 This one is being treated in some quarters as if it were binding, though, so let’s take a look at it. 

What did the employment tribunal decide? 

Ms Fortnum was a trans-identifying male woman employed by the Council as an assistant Day Care officer. Among her his duties she he was required to provide intimate personal care to male and female service users. One of those service users was a girl or woman (it’s not clear from the judgment whether she was an adult or not) with learning difficulties, referred to as DL. The judgment records that she he had done so satisfactorily and effectively, and that “Neither DL nor her mother knew that the applicant was a transsexual female.” That is ambiguous, but presumably the tribunal meant that DL and her mother believed Ms Fortnum to be a natal woman. 

On 25 May 1999, about a month before she he underwent gender reassignment surgery, Ms Fortnum was told that she he was no longer to provide intimate personal care for DL, because DL’s mother had expressed a wish that only female members of staff should attend to her daughter’s intimate care.

Ms Fortnum was upset and offended, and sued the Council for discrimination, apparently limiting herself himself to a complaint of discrimination on grounds of gender reassignment.  The Council argued that there was a genuine occupational qualification for the job (a “GOQ”); and also that Ms Fortnum had not suffered any detriment in being directed not to provide intimate personal care for DL. 

The tribunal dealt with the latter point shortly: 

We find that submission too sanguine. The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman; she [sic] was treated differently.

So far as the defence of a GOQ was concerned, the tribunal appears to have thought that the direction to Ms Fortnum to stop providing intimate personal care for DL was direct discrimination on grounds of gender reassignment; and that that discrimination was not excused on the basis of a GOQ, because Ms Fortnum had previously been providing those services satisfactorily.

Did the employment tribunal get it right? 

I don’t think it did. From the point of view of employment law, there were three questions the tribunal needed to address: first,  was the Council’s decision made on the grounds of Ms Fortnum’s sex, or her his gender reassignment?  Secondly, was the Council’s decision to her his detriment? Thirdly, if so, could the Council make out a GOQ defence? But in the background to the employment law questions there were also issues – apparently wholly overlooked by the tribunal – about DL’s right to bodily autonomy, and the serious nature of any decision to override her choices about who should provide her intimate care.

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she he hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her his gender reassignment, we ask how the Council would have treated someone the same as her him in every respect, except that they weren’t going through gender reassignment; that is to say, a man without the protected characteristic of gender reassignment.  

But once you identify that as the question, it’s obvious what the answer is: the hypothetical Mr Fortnum would have been stood down from those duties just the same as the real-world “Ms” Fortnum was. So the tribunal was wrong about this: there was no gender reassignment discrimination. The true reason the Council removed these duties from Ms Fortnum was that she he was male:⁠3 it was discrimination on grounds of sex. 

If the same facts occurred now, so that they were governed by the interplay of the Gender Recognition Act 2004 and the Equality Act 2010, the question whether the discrimination was on grounds of sex or gender reassignment would depend on whether the claimant had a gender recognition certificate or not. If not, then the discrimination would be sex discrimination for the reasons given, because she he would still be legally male. If she he did have a GRC, she he would be deemed female for the purposes of the EqA, and the discrimination would be on grounds of gender reassignment.⁠4

Was there a detriment?

There is no finding in the judgment that Ms Fortnum’s hours or pay were reduced as a result of the decision to remove her him from the particular duties in question: her his complaint was founded solely on the affront and upset that she he suffered because of that decision. The tribunal thought it was obvious that there was a detriment. 

This, to my mind, is at the heart of the case. The test for a detriment is stated by the Court of Appeal in Shamoon v Chief Constable of the RUC [2003] ICR 337: 

This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank pic v Kapur (No z) [1995] IRLR 87.

I think the tribunal was wrong on this question, too, and clearly so. Who provides intimate care is a matter of individual consent to actions that would, in the absence of consent, be criminal assaults. A woman is entitled to withhold consent for intimate care to be provided by male people, however they identify, and for the employer of carers to respect that. It is unreasonable for a man to be offended because a woman declines to receive intimate personal care from him, and it is equally unreasonable for a person with a male body who identifies as a woman to be offended for the same reason. Ms Fortnum’s affront seems to have arisen out of her employer’s refusal to instruct or permit her him to commit a criminal assault on a disabled service-user. An “unjustified sense of grievance” seems a precisely apt description for what she he felt. 

Was there a valid GOQ defence? 

If I am right about detriment, this doesn’t arise: there was no detriment, so no discrimination; so the Council didn’t need to prove a GOQ defence. 

But it doesn’t arise for another reason, too. It appears from the judgment that Ms Fortnum complained of gender reassignment discrimination only, and not sex discrimination. So even if I’m wrong about detriment, her his claim should have been doomed to failure: she he hadn’t suffered gender reassignment discrimination, which she he did complain about; and she he made no complaint of sex discrimination, which (assuming the detriment point in her his favour) she he had suffered.  

But for completeness, let’s suppose both that I’m wrong about detriment, and that Ms Fortnum had complained of sex discrimination, too. Would the Council’s GOQ defence have succeeded?  

On this point, I think the tribunal was right, but for the wrong reason. A GOQ defence was available under the SDA where the job needed to be held by a woman to preserve decency or privacy; but GOQs relate to the whole job, not specific tasks. If the whole job had been caring for DL, the job might have acquired a GOQ when DL, or her mother on her behalf, withdrew consent to have intimate care provided by someone who was biologically male. But given that Ms Fortnum could simply be reassigned to other duties, there could not be said to be a GOQ for her job. So if there had been a real detriment, and if Ms Fortnum had complained of the correct kind of discrimination, I don’t think a GOQ defence would have been available to the Council.

The fact – relied on by the tribunal – that Ms Fortnum had performed these particular tasks satisfactorily for some time had no bearing: consent to intimate care is not irrevocable once given. It was open to DL to withdraw her consent to having the services provided by someone who was biologically male, and she had done so.

Conclusion

Fortnum is a muddled and erroneous first instance decision that was (perhaps surprisingly) not appealed by the Council. It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.

Finally, a practical note. Cases like this are liable to cause women anxiety about the extent to which they are entitled to have their bodily privacy respected, so it is worth spelling this out. A woman is  entitled to insist on any intimate treatment or service – from bra fitting to catheterisation – being provided by another woman, and to decline care (etc.) offered by a trans woman. A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.⁠5 No means no. 

1 Sometimes under the name “DA v Suffolk County Council”; in any event, case number 2000 ET/1501602/99.

2 There doesn’t even seem to be an official transcript of the judgment in existence: I have been working from a transcript prepared by the claimant and her legal adviser, and published by Press for Change:  http://www.pfc.org.uk/caselaw/DA-v-Suffolk%20County%20Council.pdf

3 The Gender Recognition Act 2004 had not yet been passed, and at the time of the act complained of, Ms Fortnum had not undergone surgical transition, so there was no basis on which she could credibly have argued that as a matter of law she was female.

4 Against this, on parallel facts arising now, Chief Constable of the West Yorkshire Police v A [2005] AC 51 might be relied on for an argument that the trans woman should be treated by the law as female. My view in short is that that argument should fail. The claimant in West Yorkshire Police was a “post-operative transsexual,” and there is significant reliance placed in the House of Lords on how complete her physical transition had been. It is also relevant that West Yorkshire Police was decided before the Gender Recognition Act had come into force: there is now a statutory scheme in place that tells us whether, and for what purposes, a trans woman is to be treated as legally female.

5 Whether if the service provider refuses to provide an alternative, a woman would have a discrimination claim of her own is a question for another day; but what is beyond any possible doubt is that she is entitled to decline.

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that  only a misanthrope could oppose, or is there more to it?   

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may  be repercussions for failing to remember a colleague’s preferred pronouns. 

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration. 

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes. 

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun. 

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply,  aligning themselves with a political position they disagree with;  or else reveal their political views in the workplace, which carries  a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason.  There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable. 

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex. 

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened. 

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32). 

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further. 

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving  its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise. 

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex. 

Does the law say that trans women are women?

There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is

Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?

The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all. 

The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.

The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have undergone “a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”  If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.

But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.

If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.

In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.

Friday Round Up

A busy week in feminist legal news!

In welcome news, the CPS and police have scrapped “digital strip searches” of rape complainants, following a threat of legal action from two survivors and the Centre for Women’s Justice.

Shamima Begum has been successful in her judicial review. She challenged the decision to deprive her of citizenship and the decision to refuse leave to enter the UK. It is likely that this case will now be appealed to the Supreme Court.

Kiera Bell has published her crowdfunder on Crowdjustice to raise funds to bring a legal challenge to gender identity theory in NHS England’s Memorandum of Understanding on Conversion Therapy, arguing that in its present form it prevents clinicians from providing appropriate care.

Permission has been granted for judicial review brought by four “age verification” companies against the Government’s decision to drop the ‘porn block’ planned through age verification to access pornography. The companies, who expected to sell their age verification product, argue that the Government had the power to postpone Part 3 of the Digital Verification Act 2017 but not to drop it altogether. It is unclear whether AgeID, owned by giant Mindgeek which also owns PornHub, Redtube, Youporn, Gaytube and others, is one of the claimants.

The Howard League for Penal Reform has published its paper “Rethinking Remand For Women” arguing that women are too often inappropriately remanded.

On appeal from Scotland’s High Court of Judiciary, the Supreme Court has ruled against Mark Sutherland in a case about the legitimacy of evidence obtained through vigilante groups. Sutherland, convicted after exchanging explicit messages with a decoy he believed to be 13, brought the appeal on the basis that the use of such evidence interfered with his Article 8 rights.

The government has published the Commons Library Briefing on gender recognition and the rights of transgender people. Oddly, this was published, then vanished for a few hours, then returned with two missing sections: specifically, the section on legal gender recognition not being possible for minors and the section on provisions to support transgender children in schools. It may be that these were removed from an earlier draft in view of ongoing legal challenges.

The University of Huddersfield has published its review of the Leeds Holbeck “managed area” on prostitution. FiLiA and Nordic Model Now have reviewed the review.

Internationally, the European Court of Human Rights has ruled in YT v Bulgaria that the Bulgarian government was not permitted to refuse a trans man any legal mechanism to change the legal sex on his documents. This ruling will bring Bulgaria into line with most of the rest of Europe.

Shamima Begum: the Court of Appeal decision

Shamima Begum, the British teenager who left her home at 15 to become an ISIS child bride, has successfully challenged two decisions. She had wanted to return to Britain, her home country.

The government revoked her citizenship, arguing that she would not be made stateless because she would be entitled to apply for Bangladeshi citizenship. She challenged this through an appeal to SIAC. SIAC rejected her appeal, on the basis that

  • her hearing would not be fair, but that was not determinative in her favour;
  • she would be entitled to Bangladeshi citizenship;
  • although she was living in conditions which breach Article 3, she was not entitled to protection under the Convention because she is outside the country as a result of her own action

At the same time, she had applied for leave to enter the UK. A British citizen may enter the UK, but as she had lost her citizenship, she needed to apply for permission to enter (commonly referred to as “a visa” although there are distinctions between different types of entry clearance and leave to enter). The Secretary of State (“SSHD”) refused. She applied for judicial review of this decision. Permission was granted but the substantive JR was refused.

She then appealed to the Court of Appeal on both decisions.

The Court has allowed both appeals, although stopped short of allowing the deprivation of citizenship appeal outright. Subject to an appeal to the Supreme Court, this would mean that she would return to the UK in order to have her citizenship appeal reheard. Giving the leading judgment, Flaux LJ (with whom King LJ and Singh LJ agreed) held that

The fact that she left the country of her own free will is premature, and irrelevant to whether she can have a fair hearing.

In my judgment, the circumstances in which Ms Begum left the UK and remained in Syria and whether she did so of her own free will should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal. Furthermore, I would be uneasy taking a course which, in effect, involved deciding that Ms Begum had left the UK as a 15 year old schoolgirl of her own free will in circumstances where one of the principal reasons why she cannot have a fair and effective appeal is her inability to give proper instructions or provide evidence. One of the topics that could be explored on her appeal before SIAC is precisely what were the circumstances in which she left the UK in 2015, but that could only properly be determined after a fair and effective appeal. The Secretary of State’s submission risks putting the cart before the horse.

§94

However, that does not mean that her appeal against deprivation of citizenship must just be allowed outright. To do so would mean that any appeal in similar circumstances, however lacking in merit, would also have to be allowed.

In particular, where, as in the present case, the deprivation decision is based on an expert assessment that it is in the interests of national security, simply allowing an appeal would set that assessment at nought, a point which was powerfully made by Sir James Eadie QC. That seems to me to be an extreme position which is wrong in principle and would potentially set a dangerous precedent.

§95

So what were her next options? The court looked at three of them: (i) that she could simply continue with her appeal, fair or otherwise, (ii) that she could apply for a stay of the appeal in the hope that at some point in the future she might be able to take part in it, or (iii) if she did not ask for a stay, she would inevitably fail to comply with a direction, the appeal would be struck out, but she might be able to apply to reinstate it.

Their Lordships appeared underwhelmed by options (i) and (iii).

The first and third of these courses can be swiftly dismissed as failing to answer the issue of unfairness and lack of effectiveness of the appeal. With due respect to SIAC, it is unthinkable that, having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless….
It is one thing for an appeal to proceed without the participation of the appellant against an appellant who chooses not to participate. It is quite another to proceed with an appeal without the participation of the appellant because the appellant is unable to participate meaningfully and effectively. Far from remedying the unfairness, this would seem to compound it. As Singh LJ said in the course of argument, it is difficult to conceive of any case where a court or tribunal has said we cannot hold a fair trial, but we are going to go on anyway.

§113 – 114

Option (iii) was considered, but rejected on the basis that it would be an indefinite stay, with the potential risk of execution or mistreatment abroad a “foreseeable risk.”

The Court pointed out that she can be held in custody or made subject to a TPIM, as has happened to others who appear to be far more dangerous and have been involved in actual fighting rather than ancillary support through becoming a wife.

It seems to me that… the national security concerns about her could be addressed and managed if she returns to the United Kingdom. If the Security Service and the Director of Public Prosecutions consider that the evidence and public interest tests for a prosecution for terrorist offences are met, she could be arrested and charged upon her arrival in the United Kingdom and remanded in custody pending trial. If that were not feasible, she could be made the subject of a TPIM.

§120

There seems little reason that Begum could not be prosecuted. s.17 Terrorism Act 2006 allows for prosecution in the UK of a person who commits a terrorism offence abroad. Even allowing that extra territorial jurisdiction was introduced for some of the specified offences (“inviting or expressing support”) only in 2019 and therefore may not apply, membership of a proscribed organisation, aiding, abetting, counselling or procuring the commission of an offence, could apply. This is not one of those cases in which a suspect argues that they were simply attending a distant relative’s wedding and naively wandered through a terrorist zone. She has given an interview expressing support for ISIS. The question is perhaps not whether she could be prosecuted, but why on earth she might not be.

It seems extremely likely that this case will now be appealed to the Supreme Court. An issue which will not trouble the Courts, but may vex the casual reader, is this: why is the Government taking such a hardline approach to an ISIS child bride, when they reportedly allowed back 400 actual fighters, surely far more culpable, to face prosecution and / or a comfortable sojourn at a “leading mental health clinic?”