Policing boundaries- social policing and legal remedies

A common retort to the concern that self-identification threatens women’s single sex spaces is to say that legal mechanisms would still exist to protect women from men who would abuse the system and to provide redress when those protections are breached.  This argument is flawed.  It fails to take into account the practical difficulties that would arise in invoking those provisions.  It fails to recognise how social policing would be diminished and women would be compelled to lower their boundaries.  

What is social policing? Any woman will recognise the steps that we take to keep ourselves safe in public spaces: telling a friend when we are making a journey alone, pretending to be on the phone when in a train carriage with a strange man, crossing the street if a man is walking behind us are but a few of the behaviours that many women practise as a matter of reflex.  Included in these behaviours are measures related to communal areas: if we see a male-bodied person in the women’s changing rooms at the gym we will challenge him and ask him to leave, we will tell a member of staff, we will warn other women entering the room, we will postpone undressing until he flees in embarrassment at his mistake or is removed by the gym staff. The chances are that it is an innocent mistake and that man poses no threat to our safety, but just like crossing the road when a man is walking behind us, we would rather not take the chance.

Self-identification forces us to lower our boundaries around all male people, whether genuine transwomen or men who would pretend to be one.  It asks us to mentally place that man in the category of “woman: unlikely to be a threat” rather than “man: a potential risk”, on nothing more than his word that he is the former.  This is not about whether transwomen are a threat to other women; it’s about the fact that the removal of objective criteria for what it means to be a transwoman makes it impossible in that scenario to draw that distinction.  If the response to “This is the ladies, please can you leave” is “I’m a woman”, then challenge to that assertion becomes difficult. Even the gym staff will probably have been coached that it would be discriminatory to ask a transwoman to provide a copy of their GRC, so best not ask the question.  It might be a lie, but who wants to be seen as a bigot for falsely challenging and humiliating a genuine transwoman? We saw this exact scenario play out in the Wi Spa incident.  Better not to challenge, not to tell the staff, not to warn other women and to think twice about returning to that gym.

What legal redress could individuals or businesses invoke to protect single-sex spaces?  Let us look at an example of a gym changing room.  

In criminal law, section 66 of the Sexual Offences Act 2003 creates an offence of ‘Exposure’ where a person (a) intentionally exposes his genitals, and (b) intends that someone will see them and be caused alarm or distress.  If a man is encountered in the female changing rooms exposing his genitals, a prosecution would be reasonably straightforward: the lack of legitimate purpose in being in a state of undress in that place creates a presumption that he would know that a woman would be likely to be caused alarm or distress by seeing male genitals.  Challenging a defence that he was acting with benign intent would not be difficult.  Little would be required from a prosecution witness other than to testify that they saw male genitals and that the man concerned did not immediately act to remedy his mistake.  

However, if that same person states that he is  a woman and has a legitimate purpose in using the changing rooms to get changed, then a prosecution becomes more difficult. The presumption of mal-intent falls away.  That is not to say that a prosecution is impossible: as in the WiSpa incident, if the intruder is in a state of arousal then it would be hard to argue lack of intent. But it is likely that the prosecution witness would face much more rigorous questioning by the defence: What did you see? How long for? Are you sure (s)he was aroused? Aren’t you just a bigot for being alarmed at sharing a changing room with this poor transwoman who just wanted to get changed?  

A two-tier system for offenders is effectively created: a presumption of mal-intent if the man identifies as such, and no presumption if he identifies as transgender; but in either case the women he encounters will have observed exactly the same male body.  It is well known that ‘minor’ sexual offending such as flashing is frequently a precursor to more serious crimes.  Self-ID creates a situation where men can commit those offences with impunity.

Civil law, and specifically the exceptions contained in part 27 of Schedule 3 of the Equality Act 2010 permit organisations such as gyms to provide single-sex facilities.  They are also likely to have a contractual term for the use of their gym that members are not to harass, alarm or intimidate other users, and in theory any member beaching this condition by using changing facilities designated for the opposite sex could be banned from the gym and refused re-entry without the gym unlawfully discriminating against him.  

However, as our earlier blog explains, anything other than a blanket enforcement of the single-sex space is likely to be unworkable in practice.  Not only does this create a minefield for the gym workers to navigate, but it makes it difficult for the female patrons to object as well.  It becomes impossible for a female patron to act on those feelings of unease that have caused many a woman to take precautionary measures: instead action can only be taken once the unwelcome conduct has taken place.  

There is no obvious civil law route for a woman to take direct action against a man for using female spaces or services.  Her best course of action would be to bring a claim for direct or indirect discrimination against the service provider in relation to her protected characteristic of sex and/or where applicable, her religious belief.  She could argue that the failure to provide appropriate single-sex facilities to change subjects her to a detriment upon which a claim for indirect discrimination can be founded.  If (as seems to be an emerging trend) the serviced provide designates the facilities as ‘male’ and ‘gender neutral’, she may have a claim for direct discrimination. 

But resorting to the law is expensive, time-consuming and can be emotionally challenging.  Some women will simply limit their engagement with sports, with recreation and with spending time outside of the home.  

Sex matters in drawing comparisons

How a false assumption led an employment tribunal to wrongly find an NHS Trust guilty of discrimination

A guest post by Anya Palmer, barrister

In a recent case, V v Sheffield Teaching Hospitals NHS Foundation Trust, the Leeds employment tribunal cleared the employer and several of its managers of a large number of claims of disability discrimination, gender reassignment discrimination, harassment and victimisation.

However, the tribunal concluded that the employer did discriminate against the Claimant when a manager asked the Claimant questions about removing his underwear at work.

In its judgment the tribunal describes the Claimant as “a transgender woman” and refers to him throughout as “she”. I will not be doing that, because in my view the use of this polite fiction directly led the tribunal to get the Claimant’s sex wrong and therefore to deploy the wrong comparison and get the law wrong.

We are told in the judgment that the Claimant was “currently transitioning”, but no information is given as to what that actually meant or how far the Claimant had got with it.

However, we are told that at the Claimant’s request, staff were told in writing that the Claimant would be joining their team, that the Claimant was transitioning from male to female and that he did not want to be asked questions about that. They were also told that the Claimant would be using a cubicle in the women’s changing rooms and did not want to be asked questions about that either.

It seems likely, therefore, that this was a case where it would be obvious to everyone that the Claimant was not a woman, and the Claimant’s colleagues were being warned that they should play along and not object or ask questions.

The judgment says the Claimant had been the victim of arson attacks outside work. Here is a BBC interview with a transgender person in Sheffield who was the target of an arson attack in 2019. It seems quite likely that “Amy” in this interview and the Claimant are the same person. The arson attack is appalling. But if this is indeed the Claimant, he does not (as of June 2020, about the same time as he started work for the Trust) remotely pass as female, and this is who the women were being told they had to share a changing room with and not ask questions.

The employer organised bespoke training on transgender and gender identity issues for everyone in the catering unit where the Claimant would be working. The tribunal notes that during the training some concerns were raised by female staff:

Some expressed concerns, mainly female members of staff worried about sharing the ladies changing room with a transgender woman. Mrs Edwards tried to address those concerns by explaining that there was no evidence of transgender women being a threat or causing any issues in the workplace, and that there needed to be a balance of rights and respect for someone who wanted to live her life completely as a woman.

We only have this third-hand description of how the women themselves expressed their concerns. It seems unlikely that the women expressed their concerns by referring to the claimant as a “transgender woman”. It is far more likely that they expressed concerns that they were being asked to share the women’s changing room with a man. But there are no findings on what the women themselves said.

What is clear is the women were not being asked if they agreed to the Claimant using the women’s changing room. They were being told that he could and would. Lip service was paid by the manager who delivered the training to a “balance of rights”, but it is clear that their right to any say in the matter had already been written off. 

It is not clear why, because it is not the case in law that a trans-identified male at an early stage in their transition must be allowed to use the women’s facilities: see the Court of Appeal judgment in Croft v Royal Mail Group plc [2003] EWCA (Civ) 1045. But perhaps the Trust was taking advice from people who would not mention that case, who would advise that the Claimant must be treated as if he were a woman from the outset.

*****

The events that led to the finding of discrimination took place a year later. On 10 June 2021 the Claimant spoke to a Mrs Townsend, a Catering Assistant, asking to go home as he said he felt hot and sweaty and this was making him feel ill. He told her he was so hot he had taken his underwear off, and made a wringing motion with his hands. 

Mrs Townsend went to see Mrs Hawkshaw, Catering Manager, because she herself did not have the authority to allow the Claimant to go home, and she recounted the whole conversation to Mrs Hawkshaw. She then made a note of the conversation.

In tribunal the Claimant denied making the remark or the gesture, but the tribunal preferred Mrs Townsend’s evidence:

137.   … She had no issue with the Claimant and no reason to make this account up. She made a note of the conversation on the day. We found that it was accurate. It seemed to the Tribunal that the Claimant did have a tendency to blur appropriate boundaries, and perhaps to “overshare” with her colleagues. We noted that she denied making the comments and gesture as soon as she was asked about it a few days later, but we still found that it was more likely than not that the Claimant had made the comment and gesture.

The Claimant was then off work until 16 June 2021, when Mrs Hawkshaw held a return to work interview with the Claimant and told him he would have to attend a stage 3 attendance management meeting. The Claimant reacted very badly to this, going and shouting in front of staff and customers that he would take the Trust to court.

On 25 June 2021, Mrs Hawkshaw had another meeting with the Claimant to address various issues, and in this meeting she asked the Claimant about the underwear remark and the wringing gesture.

It seems that what moved Mrs Hawkshaw to ask questions about that now, two weeks after the Claimant had made the remark, was that the day before this meeting, Mrs Hawkshaw had received a report that the Claimant had been seen “naked from the waist down” in the women’s changing room. Mrs Hawkshaw had been given a statement about this. Unfortunately the tribunal does not tell us any more about this incident, which seems like it might just be relevant to why Mrs Hawkshaw questioned the Claimant about removing underwear at work, as indeed the tribunal itself concludes.

Mrs Hawkshaw did not ask the Claimant directly about the changing room allegation, but she did ask the Claimant in general terms whether he took his underwear off at work.

The Claimant found these questions embarrassing, and subsequently raised a grievance, and later brought a claim of direct discrimination based on gender reassignment in respect of having been asked them.

The tribunal dealt with this claim as follows:

152. …the Tribunal found that the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that the reason Mrs Hawkshaw had asked her those questions about her underwear was because she is a transgender woman. Those facts were:

152.1 The questions asked were not simply about what had happened on 10 June 2021 but were more general questions about whether the Claimant wore or changed her underwear at work and whether she was ever inappropriately dressed at work.

….

152.4    Mrs Hawkshaw had received a report about the Claimant being naked from the waist down in the changing room before asking the questions. She did not mention that specifically, but the questions she asked seemed to be connected with that as much as with the conversation with Mrs Townsend.

152.5     A concern about the Claimant’s state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman. This was a communal changing room with a shower cubicle. It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room. [emphasis added]

153.   The Tribunal therefore found that the burden shifted to the Trust to prove that the reason for Mrs Hawkshaw’s line of questioning was not the Claimant’s transgender status. The Trust did not do so…. The Tribunal therefore concluded that Mrs Hawkshaw asked the questions because of a concern that the Claimant as a transgender woman might be in a state of undress in the female changing room. That was because of gender reassignment. Mrs Hawkshaw would not have asked the questions of a cisgender woman. [emphasis added]

I will argue that this was the wrong comparator. To do so I first need to explain how comparisons work in discrimination law.

*****

To show that he or she has been discriminated against because of a protected characteristic, a claimant needs to show that he or she was treated less favourably than a comparator who does not have that protected characteristic.

So if you are a woman claiming sex discrimination, you need to show that a man was treated more favourably in the same (or not materially different) circumstances.

Or if there isn’t an actual comparator, you can argue (based on evidence) that a hypothetical man would have been treated more favourably in the same circumstances.

As a matter of logical inference, if a woman was treated less favourably than a man was treated (or a hypothetical man would have been treated) in the same circumstances, the reason for the less favourable treatment is the woman’s sex.

And so it goes for each of the nine characteristics that are protected under the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The requirement that the circumstances must be the same, or not materially different, is an important feature of this comparison exercise. You have to compare like with like, and this is expressly stated in the Equality Act 2010 (and always has been since the Sex Discrimination Act 1975).

Section 23(1) of the Equality Act 2010 provides as follows:

(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

Section 13 defines direct discrimination, so this requirement applies in any case where direct discrimination is claimed.

In Shamoon v Chief Constable of the RUC [2003] ICR 337 HL, the claimant, a senior police officer, brought a claim for sex discrimination, and she sought to compare how she had been treated by her line manager with how two male colleagues had been treated. The Northern Ireland Court of Appeal held that the two male officers were not valid comparators, because there was a material difference between her circumstances and theirs – there had been complaints about the Claimant, but not about the comparators. This was relevant to her line manager’s treatment of her. The House of Lords upheld that conclusion.

In the House of Lords, Lord Scott of Foscote explained the way that a comparison is used to establish direct discrimination, and he then said this:

110.  In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. [emphasis added] 

The way this applies in the case of a trans-identified male who has not obtained a Gender Recognition Certificate (GRC) was confirmed by the High Court in R (on the application of Green) v Secretary of State for Justice.

The claimant, a male prisoner serving a life sentence for murdering his wife, had recently decided he wanted to undergo gender reassignment, and he sought judicial review because he was refused permission to obtain “wigs, intimate prostheses and tights” (for security reasons). The claimant complained that this was in breach of prison service policy, and also complained that it was unlawful discrimination contrary to the Equality Act.

The judge dealt with the discrimination part of the claim as follows:

65.     This is a direct discrimination claim under section 13(1) of the Equality Act 2010 and, as the Governor is exercising a public function, section 29(6) engages.

66.     A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic — gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.

67.     It seems to me that I must approach the discrimination issues in this way:

(1)  Has the claimant been treated less favourably by the Governor than he would treat others in the exercise of his public function?

(2)  If he has so treated the claimant, was this due to the claimant’s gender reassignment?

68.     Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group plc [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman — but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women — until they become women.

69.     A male prisoner (who wishes to remain male as most do) does not need to express his gender identity in any purposeful way. He does so innately through the male clothes he wears and certainly does so via prison clothing. Transsexual prisoners are treated differently (and wish to be so) and as such have a number of advantages in terms of clothing and lifestyle not available to the remainder of the male prison population absent privileges.

70.     I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner — indeed the reverse. Consequently, the second question I posed does not arise.

In short: the correct comparator for a trans-identified male who does not have a GRC, and is claiming gender reassignment discrimination, is a male who does not identify as trans.

The correct comparator is a person who does not have the protected characteristic of gender reassignment. But the comparator should be the same in all other material respects. So if the claimant is male, the comparator must also be male.

*****

How do we apply Shamoon and Green to the facts in V v Sheffield Teaching Hospitals?

The Claimant in V was not a woman, however managers and the tribunal refer to him. He was born male. He remained male. The fact that he now identified as “a transgender woman” did not change this. Self ID is not yet the law in this country, however much Stonewall and others try to make out that is the case.

The judgment does not say whether the Claimant had obtained a GRC, but if he had obtained one it seems likely that he would have mentioned that in evidence and relied on it, that the tribunal in turn would mention that in its fact finding, and indeed the tribunal might have considered in its reasoning what effect, if any, that had when making the comparison.

So it seems highly likely that the Claimant did not have a GRC and remained legally male, as well as biologically male.

The correct comparator would therefore be a male who did not have the protected characteristic of gender reassignment.

So why did the tribunal draw a comparison between how the Claimant was treated and how a “cisgender woman” would have been treated?

There are two possibilities here:

(1) The tribunal did not understand that the comparator should be the same as the Claimant in all respects except for the protected characteristic, and so the comparator should be of the same sex as the Claimant; or

(2) The tribunal wrongly assumed that the Claimant was female, and therefore concluded the comparator should be female.

The tribunal does not give any explanation as to how it decided that the correct comparator was a “cisgender woman”, so it’s difficult to say for sure which of the above is the answer, but I strongly suspect the answer is (2).

The tribunal is very likely to have considered the Equal Treatment Bench Book (ETBB). This is a sort of diversity and inclusion handbook for the judiciary. It provides guidance on how to run the hearing. It is not a guide to the law. It has no status in law. And yet it is highly influential. It advises courts and tribunals to always use a trans person’s chosen name and pronouns regardless of the reality or their legal status:

It should be possible to respect a person’s gender identity and their present name 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.

In other words – the court or tribunal is advised to be guided by self ID. If a male person says he identifies as a woman, then regardless of whether he has obtained a GRC, regardless whether he has even undergone any physical transition, the court should refer to him as a woman and use the pronouns “she” and “her.”

It’s the same advice that the Trust gave to its employees. Act like V is a woman. Don’t ask questions.

Trans women are women.

The problem is that this is, essentially, a political position which does not represent the law anywhere in the UK. Self ID is not the law. But the idea that a man is a woman if he says so is being pushed by activists to managers and decision makers in institutions up and down the land. It is happening in the NHS. And it is happening in the judiciary. (For a full analysis of the problems with the Equal Treatment Bench Book in this respect, see Prejudging the Transgender Controversy by barrister Thomas Chacko.)

There is no reminder to the judges who consult the Equal Treatment Bench Book that there may be cases in which it falls to them, as part of their job, to consider what sex the claimant is, and at that point they need to forget about polite fictions and determine whether the claimant, as a matter of fact and law, is a man or a woman – however unpalatable it may be to the claimant if the answer is that the claimant is male.

(Nor is there any warning to counsel that the judge may consult the ETBB. In the preliminary hearing in Forstater v CGD Europe on whether the claimant’s belief was a protected belief, I was not aware that the employment judge had consulted the ETBB until I read about that in the judgment. I had no opportunity to address the judge on that. Obviously this should not have happened, but happen it did. By way of advice to any counsel dealing with these cases – be aware that the judge may consult the ETBB without telling you. If there is anything you want to say about the ETBB, make sure you say it. Don’t wait to be asked.)

I suspect the tribunal in this case did as it was told by the ETBB (and/or any diversity training the judge may have had) and referred to the claimant throughout as “a transgender woman” and using the pronouns “she” and “her”. And in doing so it forgot that this polite fiction did not mean the claimant was in fact a woman.

So when it came to look for a non-transgender comparator, it assumed the comparator would be a non-transgender woman.

*****

How did this affect the tribunal’s conclusions on this issue?

The tribunal concluded that

152. the Tribunal found that the Claimant had proved facts from which it could conclude, in the absence of an adequate explanation, that the reason Mrs Hawkshaw had asked her those questions about her underwear was because she is a transgender woman... [emphasis added]

152.4 Mrs Hawkshaw had received a report about the Claimant being naked from the waist down in the changing room before asking the questions. She did not mention that specifically, but the questions she asked seemed to be connected with that as much as with the conversation with Mrs Townsend.

152.5 A concern about the Claimant’s state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman. This was a communal changing room with a shower cubicle. It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room. [emphasis added]

153. The Tribunal therefore found that the burden shifted to the Trust to prove that the reason for Mrs Hawkshaw’s line of questioning was not the Claimant’s transgender status.

The flaw in the tribunal’s reasoning is obvious once we consider the question the tribunal should have asked:

Was Mrs Hawkshaw likely to have been concerned about a non-transgender male in a state of undress while using the women’s changing room?

Well of course she would. Because it was a women’s changing room, and the non-trans male comparator is… male.

(One could posit as part of the relevant circumstances for making this comparison, that the comparison should be with a non-transgender man who, for some exceptional reason, had been given permission to use the women’s changing room. Even so, it is obvious that if that man were then seen “naked from the waist down” by women using the changing room, that would have been reported to Mrs Hawkshaw, and she in turn would have had concerns, especially if she knew that he had also, on an earlier occasion, told a female supervisor that he was so hot he had removed his underwear, and had made a wringing motion.)

If the correct comparison is used, I cannot see how the tribunal would have concluded that the burden shifted to the Respondent to explain the difference in treatment. There is no difference in treatment once the proper comparator is used. Any report of a man making comments to female colleagues about removing his underwear and then seen naked from the waist down in the women’s changing room would have given rise to the same concern.

The respondent NHS Trust therefore has, in my view, a clear ground of appeal in respect of the one finding of gender reassignment discrimination made against it.

I hope the Trust will appeal. It is only by challenging decisions like this one on appeal that tribunals will hopefully learn to think through what does and does not properly constitute gender reassignment discrimination.


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. 

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.

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. 

How To Reconcile The Seemingly Irreconcilable

This is a talk I gave at the FILIA conference on 17 October 2021. 

I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.

The two seemingly irreconcilable principles are

1.    Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic.  No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.

Against that

2.    “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same. 

So how to reconcile this?

Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration. 

Whilst it predates the Equality Act 2010, it follows the same principles.

The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council. 

The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’.  A one size fits all approach. 

This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.

It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.

On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence. 

Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.

The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.

It required:

due regard for the need –

(a) to eliminate unlawful racial discrimination, and 

(b) to promote equality of opportunity and good relations between persons of different racial groups.”

This wording clearly is the basis for s149 Equality Act  

s149 Public sector equality duty (PSED)

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing. 

In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women. 

Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity. 

It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).

Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally. 

The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now 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.

Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.

The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities. 

That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –

“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”

She continued:

Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”

So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women?  Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?

Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.

She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.

After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”

She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men.  Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”

Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.

The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.

LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:

“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”

This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all. 

Schrödinger’s PCP

https://commons.wikimedia.org/wiki/File:Kitten_and_partial_reflection_in_mirror.jpg

In AEA v EHRC [2021] EWHC 1623 (Admin), Henshaw J refused the claimant permission to seek judicial review of the EHRC Code of Practice on Services, public functions and associations. AEA had challenged various aspects of the CoP, but in particular a paragraph that asserted that service providers offering single-sex or separate-sex services should treat transsexual people according to the gender role in which they present (I’m just going to write “single-sex” in what follows, but ​everything applies equally to separate-sex services). AEA argued that that misstated the law: any lawful single-sex service is entitled to exclude everyone who is not of the sex in question, irrespective of what other protected characteristics they might have. 

 A decision refusing permission for judicial review has no status as precedent, so the judgment is not binding on any other court or tribunal. But it has attracted some attention nevertheless, partly because of the heightened feelings on both sides of the “gender war,” and partly  because of the trenchant terms in which it is expressed. The judge repeatedly dismisses AEA’s arguments as “clearly wrong”, “clearly incompatible with the tenor of the Act,” and even “an obvious absurdity.” 

That makes me think it’s worth taking a look at some of the detail of Henshaw J’s reasoning. First, a very short introduction to the Equality Act 2010 and how it works. 

The Equality Act 2010

The Equality Act prohibits various kinds of discrimination on grounds of specified “protected characteristics” – age, sex, race, etc. – in a number of specified contexts. The Act is structured as follows. First (after some preliminary material that doesn’t matter for my purposes), it defines the protected characteristics. There are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. 

Next, the Act defines various different kinds of discrimination: direct, indirect, harassment, failure to make reasonable adjustments for person with a disability, etc. The two that matter for present purposes are direct and indirect discrimination. Direct discrimination is treating someone less favourably than others because of a protected characteristic. Indirect discrimination is the application of a provision, criterion or practice that puts a group defined by a protected characteristic at a particular disadvantage compared with others, and cannot be shown to be a proportionate means of achieving a legitimate aim. 

Note that, thus far, the Act hasn’t prohibited or required anything: these initial parts of the Act simply set up the definitions that are going to be relied on in the later sections that actually tell you what you are and are not allowed to do. 

The real work of the Act is done in parts 3 to 7, which prohibit discrimination in various different contexts: services and public functions, premises, work, education and associations. These prohibitions are modified by various exceptions and qualifications, some to be found in the Act itself, and some one or other of its Schedules. 

Part 3 of the Act prohibits discrimination in the provision of services and public functions, and schedule 3 provides for exceptions to those prohibitions. 

The argument 

Among the schedule 3 exceptions, there are rules intended to make it possible to run single-sex services if certain conditions are met. AEA had argued that if it’s lawful to operate a particular single-sex service for women, then it must necessarily be lawful to exclude all men from it: otherwise it’s not single-sex. So far, so obvious, you might think. If that was right, the EHRC guidance saying trans people should be treated according to the gender role in which they presented was erroneous. 

The EHRC had come up with a clever answer. Schedule 3 says that where the conditions for a women-only service are in place, it’s not unlawful sex discrimination to exclude all males. But it doesn’t say that it can’t be unlawful discrimination on any other ground. So, EHRC argued, a rule excluding all men from the service might turn out to be unlawful indirect discrimination on grounds of gender reassignment.

That was a neat argument, but there was a neat answer. Once the conditions of paragraphs 26 or 27 of schedule 3 are met, the sex discrimination inherent in the rule is excused, but it’s true that those paragraphs don’t exclude the possibility of indirect discrimination on some other ground. And it is clear enough that excluding all men from a service could sometimes put men with the PC of gender reassignment at a disadvantage compared to men without that PC, if it was a service they needed and for which there was no unisex provision where their presence would be unremarkable. So a complaint of indirect discrimination within the meaning of section 19 of the Act might be brought, and if it did a question might arise whether the rule excluding men was a proportionate means of achieving a legitimate aim. 

But at this point it becomes clear that indirect discrimination takes matters no further forward. It is only lawful to offer a single-sex or separate-sex service under paragraph 26 or 27 of schedule 3 if “the limited provision is a proportionate means of achieving a legitimate aim.”  This is the exact same question asked by s.19 to determine whether there is indirect discrimination. If the limited provision is not a proportionate means of achieving a legitimate aim, then it’s not lawful to offer a single-sex or separate-sex service at all. If it is lawful to offer a single-sex service, then ex hypothesi, the limited provision (and with it the rule excluding men) is a proportionate means of achieving a legitimate aim.

It follows as a matter of inexorable logic that if it is lawful to offer a women-only service, it’s lawful to exclude all men from it – including those who identify as women. 

One can reach the same conclusion by a shorter route. If it is lawful to offer a single-sex service for women, then of course it is lawful to exclude all men from it: otherwise it’s not single-sex, but mixed.

At ¶15, Henshaw J says this: 

The claimant submits that if a difference of treatment can be justified vis-a-vis birth men in general, then it is inconceivable that it cannot equally be justified vis-à-vis birth men who are transsexual women. On that approach, though, the Equality Act’s gender reassignment provisions would in substance provide no protection at all, in the context of an SSS, to transexual persons without a GRC.

Since the AEA’s contention was exactly that – that the gender reassignment provisions provide no protection at all to trans persons without a GRC so far as the operation of single-sex services is concerned – what this boils down to is “But on the claimant’s approach, the claimant would win!”  The same point recurs at ¶17: 

In my view, the claimant’s argument is an obvious absurdity because it would construe s.19 in such a way that Schedule 3 para. 28 could never apply to a transexual woman lacking a GRC who complained of indirect discrimination vis-à-vis birth women.

Again – that was exactly AEA’s point: paragraph 28 of schedule 3 would never arise in the case of a trans-identifying man without a GRC. So this means “The claimant’s argument is an obvious absurdity because it would lead to the claimant winning its argument.” This is a particularly pure specimen of the logical fallacy called “begging the question”: that is, assuming as part of your argument that which is to be proved.

This is odd. They don’t as a rule appoint fools to the High Court bench, and everything about Henshaw J’s career to date confirms that he’s no exception. And yet the logical fallacy is plain to be seen – twice. What’s going on here? Why did the judge find it so unthinkably absurd that AEA could be right in saying that if the law lets you restrict a service or space to women, it’s ok to – well, restrict it to women? 

I don’t know the answer to that question. I have a guess – actually I have two guesses. The first is that the promulgation of ‘Stonewall law’ has been so successful that large parts of the educated elite have absorbed it as a commonplace ‘known fact’ that it is unlawful except in the most extreme circumstances to restrict trans people’s access to spaces and services provided for the opposite sex. When AEA argued that trans-identifying males without GRCs could be routinely excluded from any legitimate female-only space or service, that came into conflict with something the judge thought he had known for ages. My second guess is in the coda at the end of this blog. 

Paragraph 17 continues:

[T]he claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29 [this is presumably a typo for 28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination.

It is not clear why the judge thinks that an approach that puts trans-identifying men without a GRC in the same position as other men for these purposes is incompatible with the tenor of the Act. The Act prohibits discrimination on various grounds as well as sex and gender reassignment; but the point – indeed the very definition – of single-sex services is that they exclude one sex. It follows that a single-sex service for women will exclude all men, irrespective of their other protected characteristics: if that goes for race, disability, sexual orientation, age, religion or belief, why would it not also go for gender reassignment?

The error into which the judge appears to have fallen is to conflate the right not to suffer  discrimination on grounds of gender reassignment with a right to be treated as the opposite sex. A trans-identifying man excluded, for example, from the ladies’ has not suffered discrimination on grounds of gender reassignment, because a non-trans-identifying man would be excluded just the same. To the extent that the law provides for a right to be treated as the opposite sex, that is done through the mechanism of the Gender Recognition Act 2004, but only for the benefit of those who have a gender recognition certificate.

At ¶16, the judge says: 

In deciding whether a PCP is a proportionate way of achieving a legitimate end, it is inevitable that regard must be had to its impact on persons with the protected characteristic in question. It is clearly wrong to assume, as a matter of law, or as a matter of obvious practice, that the answer will necessarily be the same whether one assesses a PCP as applied to birth males in general or whether one assesses it as applied vis-à-vis birth males who are transsexual women.

This is surprising. The words of the justification provisions are identical in s.19 and in ¶¶26 and 27 of schedule 3: what needs to be shown is that “the PCP” in one case or “the limited provision” in the other is “a proportionate means of achieving a legitimate aim.” Given that the PCP is the rule excluding one sex, a court seized of a question about the lawfulness of a single-sex service would be answering at both points the question “is the rule excluding men a proportionate means of achieving a legitimate aim?” The judge in AEA appears to think that that question could have one answer for the purposes of ¶26 or 27, and a different answer for the purposes of section 19. The rule is either a proportionate means of achieving a legitimate aim, or it is not: it can’t be both a proportionate means of achieving a legitimate aim and not a proportionate means of achieving a legitimate aim at one and the same time.  

Coda – on words 

I was junior counsel for AEA in this case.  Before that hearing, I had been willing – out of politeness, and sensitivity to the feelings of trans people generally – to write and speak of “trans women,” and use feminine pronouns, even when not referring to real individuals but exploring hypotheticals and generalities. Listening to argument in court that day was a personal tipping-point. It became vivid – to me at least – in the course of the hearing that the unreal language being used by everyone was obscuring the logic of the arguments and confusing the court. It’s much easier to see at a glance that a legitimate rule excluding men will legitimately exclude all men if your language acknowledges that all the people whom it excludes are indeed men. 

Thinking, speaking and writing of “trans women” or “transsexual women” primes our minds to conceptualise trans-identifying men as a kind of woman. They are not: men are still men – however they identify, whatever they wear, and whatever treatment they may have undergone to modify their bodies to look more like women’s bodies. Those of us who would defend clarity and rationality in this area of the law need to hold that line. 

Don’t be that employer

Legal Feminist tweeted a short thread starting like this the other day:  

It seems worth elaborating briefly in a blog, so here goes. 

The first point to make is that the allegation made by @MotherCecily is unverified: I don’t know who she is, or who her husband is, and I haven’t seen the email or the agenda. But it will serve anyway as an example of the kind of thing that an employer might do. 

It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.”  It looks pretty bad, doesn’t it? 

The memo doesn’t seem to have circulated very far yet. Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable. 

But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment. 

First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet). Bearing in mind the prevalence of active harassment of those who express gender critical views, there may be quite a few. 

Secondly, it’s likely to be pretty bullet-proof. If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind. 

Finally, connoisseurs of such things will admire the irony. If employment tribunals awarded points for style, being found liable for discrimination contained in your diversity training ought to get full marks. But if you’re an HR manager who’d rather not be awarded points for style (which an employment tribunal might possibly call “aggravated damages”), you should be careful not to expose staff to training of this nature. 

The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog),  or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular. 

“You say objective, I say subjective”, what is the legal test? A blog about harassment and protected beliefs

Before and after the recent Forstater v CGD (2021)  case, there was a torrent of speculative commentary about what this meant both for trans people and gender critical people when it came to harassment under section 26 Equality Act 2010. 

On 27th April 2021, barrister Robin Moira White wrote in the Independent: 

It will mean, for example, that a person will be permitted to misgender a trans work colleague, indeed be legally protected if they do so. This puts employers in an impossible position where one employee is entitled to harass another, likely making the employer liable to the harassed employee for discrimination. It is both morally wrong and practically unworkable: employers will not be able to meet their duty of making workplaces safe to work in or public spaces safe to visit. “

Thankfully, this pessimistic prediction was proved wrong. The Employment Appeal Tribunal stressed that its judgment didn’t mean open season for people to harass trans people. It could have added “and the same goes for gender critical people.” 

In practice, what Forstater established was that both gender identity theory and gender critical feminism are protected as beliefs under s10 EA.

But what does that mean in practice regarding protection against harassment? Is “misgendering” (calling a transperson by a pronoun that signifies their biological sex) or calling someone a TERF (an offensive term to many)  or “bigot” unlawful harassment?

The classic and annoying lawyers’ answer… it depends! 

So how to decide if something is unlawful harassment?

First of all, some important caveats: I am talking about civil law, not criminal law. This isn’t about hate crime or other forms of harassment (say under the Protection from Harassment Act). 

This piece is not about whether it is right or wrong that something is considered unlawful harassment, but my best guess about what a court or Employment Tribunal will determine.

Context

This guidance is not relevant in all situations, only for those set out in the Equality Act. So it applies in work, education, political parties, larger membership organisations, some transport and some housing. It doesn’t apply between private people, say in the streets, unless one of them is working. That may be covered by other law, but is outside the scope of this blog. S29(8) states that, with regard to services to the public and public functions , neither the protected characteristics of religion and belief and sexual orientation are covered by the sections on harassment. ‘Harassing’ conduct related to religion or belief or sexual orientation which causes a detriment is covered by direct discrimination protection.

Which protected characteristics are covered?

Age, disability, race, sex, sexual orientation, gender reassignment and religion or belief are all protected against unlawful harassment. Marriage and civil partnership, and pregnancy and maternity, are not – although the latter is effectively covered against harassment via a different route in s17 and 18 Equality Act.

What does the law say ?

The Equality Act says the following:

26 Harassment

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”

So let’s break it down:

Unwanted conduct” means the person alleging harassment didn’t consent to it. It is aimed at avoiding liability for genuine give-and-take banter. This does not mean the sort of bad defence used by obvious harassers to seek to exclude insults,  but rather a hug between old friends, affection between consenting romantic partners, or a genuinely equal debate about politics in the canteen between colleagues, for example. 

Related to a protected characteristic” means you don’t have to have that characteristic to be harassed; but there must be a link between the words, actions etc and the protected characteristic. This sort of harassment isn’t about generic bullying.

Conduct has the purpose or effect”. If the evidence shows the alleged harasser intended for the words or conduct to be harassing (usually determined as such because it is obvious for those words or conduct were the sort purposefully used to harass), that is then immediately proved.

If, instead, it is argued that, whether or not it was intended, the effect was harassing, then there is a further test in s26(4) Equality Act, as follows:

“(4) In deciding whether conduct has the effect referred to, each of the following must be taken into account—

(a)the perception of B [person alleging harassment];

(b)the other circumstances of the case;

(c)whether it is reasonable for the conduct to have that effect.”

In legal terms this is known as an objective, subjective test. The test is not just whether the claimant perceived harassment, but whether that is a reasonable perception. A person who is frequently late to work may feel harassed by their boss reminding them not to be late on consecutive days, but it would not be reasonable for the reminders to amount to harassment. On the other hand, a person who has ADHD but is rarely late may well be harassed by an employer singling them out every evening with the words “Remember to be on time tomorrow – we know how ditzy you ADHDers are!” 

Violating dignity etc”

 This is exactly as described.. A court or tribunal needs to be satisfied that one of these descriptors could be applied to the situation evidenced.

In this piece I am not going to discuss s26(2) and (3), but it is worth noting the wording.

Very case specific

The result of this is that there are no glib equations to provide a bright line between conduct which is and is not harassment.   It really depends on context and framing.

In the context of the gender critical/gender identity context, my predictions are that: 

1.    Simply wearing a rainbow lanyard or putting one’s own preferred pronouns in your emails at work will not amount to harassing someone else;  but reporting someone to management who simply chooses not to, due to their beliefs, might well be harassment, 

2.    Setting up a Gender Critical or Gender Studies Research Group will likely not be an act of harassment; but campaigning against colleagues doing so might be harassment.

3.    Responding politely with one’s own views to a consultation about single sex or mixed gender facilities will not be harassment; indeed complaining to management about someone about their polite answer might well be. In the case of  Mbuyi v Newpark Childcare (2015), the Employment Tribual found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them. 

4.  Calling a colleague a TERF or intentionally misgendering them may well be held to be harassment. This is distinct from accidental misgendering, because the choice of pronoun is unknown to the speaker or because the speaker’s disability causes them not to remember such things;

5. Discussing politely and personally on social media whether the law should be changed to self ID is likely not to be, unless there is evidence of risk that this may lead to actual discrimination or harassment. Some support for this contention is given in two cases not directly relating to harassment but addressing the risk of that happening going forward. The Court of Appeal in Ngole v Sheffield University 2019 (a case concerning an evangelical Christian student social worker who was expelled from his university course after  expressing “Biblical views” on social media about homosexuality) said at para 129  “such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate” . It was notable that the University had accepted there was no evidence of intention to discriminate against gay people by Ngole. This is in contrast to Dr Mackereth in DWP v Mackereth (2019) who made it clear that his particular Christian belief meant that he did have an issue using pronouns inconsistent with the service user’s birth gender [sic]. It later became clear that it also extended to using a title or style of address, Mr, Mrs, Ms, Miss etc inconsistent with the service user’s birth gender [sic]. Dr Mackereth failed in his claim. Whilst it is under appeal, my view is that an appeal is unlikely to succeed.

5.   Proselyting to colleagues or service users about one’s gender critical or gender identity beliefs is likely to be harassment, in a similar way  to cases involving religious proselytising like Haye v Lewisham BC (2010) and Amachree v Wandsworth Borough Council (2010)) .

In each of these cases, the judge considered the facts carefully and conducted a balancing exercise of the basis of the facts to determine whether the employer had properly considered the employee’s right to manifest their belief. In those cases where the employer’s decision was upheld, it was generally because of the actual discriminatory impact of the employee’s actions on other people. 

These cases also demonstrate that similar issues can be dealt with through good employer practice and employees understand what is expected of them. An employer can have a policy which places limits on discussions about religion or belief at work, but any restrictions on freedom of speech or manifesting religion or belief must be proportionate to achieving aims like protecting the rights of others or the reputation of the employer. 

So if confronted with a complaint or grievance by someone alleging unlawful harassment, what sort of questions should you ask to determine if conduct amounts to harassment?

1.    What was the context in which the alleged conduct occurred?

2.    What does the complainant say happened?

3.    What evidence is there of the consequences of the conduct on the complainant or others?

4.    Why do they say it has the effect they claim? This goes to context. 

5.    What does the respondent  say happened?

6.    What are the relative power positions of the two?

7.    What do any witnesses say?

8.    Is there any other relevant evidence?

9.    What do your office policies say about social media use, and what is deemed misconduct or discriminatory behaviour? Do those policies balance freedom of speech, belief and private life with legitimate employer concerns like risk of harassment of colleagues or service users?

10. Have there been previous warnings against this conduct and when?

Having gathered all this information, and weighed up whose evidence is more credible, it is for the decision maker to decide whether each of the allegations are more likely than not to have happened, and if so, to determine sanction. 

Employers and service providers also need to check their policies and Equality and Diversity training materials to ensure there is no harassing content in there. 

In summary, there is no simple equation of  X=harassment but Y does not. Ultimately, it is a fact-specific exercise, where freedoms of speech and belief are balanced against the necessity to protect from harassment in the workplace.