Tag: Equality Act 2010

How to lose well ….. and how not to.

No-one likes losing a court case. But it happens – even to the very best lawyers. How to respond in public (assuming your case is one the public is interested in)?

Until a judgment has been properly analysed and understood, a brief “We are disappointed. We will review it carefully and decide next steps.” is usually both sufficient and, more importantly, wise. In cases of obvious public interest, it may be clear in advance that the losing party is likely to appeal and saying so is unlikely to create any embarrassing hostages to fortune. But the one thing that a losing party should never do is issue misleading statements about what the judgment says. Doing so can create legal jeopardy if relied on by those who do not read the actual judgments themselves. It also shows disrespect for the court. Surely such misleading never happens? If only.

There have been recent examples of all three types of responses in recent weeks: two of them on the same day.

  • Sex Matters’ challenge to the Corporation of London’s policy of allowing trans-identifying men to use the women-only pond on Hampstead Heath. Sex Matters lost on a number of procedural grounds so the substance of the Corporation’s policy was not considered by the court because the request for a judicial review simply did not reach the procedural threshold. Sex Matters’ response was short and to the point: it expressed its disappointment and noted the basis of the decision.
  • The judicial review of the government’s decision to proscribe Palestine Action as a terrorist group, which the government has lost. The government has stated that it will appeal the judgment and, in light of that, the court has said that the government’s proscription remains in force until its appeal has been heard. It was important for the court to say this clearly, notwithstanding its decision that the government had not properly followed its own policy, because supporting a banned terrorist organisation is a criminal offence and people should not be misled into acting on the mistaken belief that it is now lawful to do so. The court is maintaining the status quo until a higher court determines the appeal.
  • The Good Law Project’s (“GLP”) response to its challenge – and that of three anonymous parties – to the EHRC’s interim guidance following the Supreme Court’s judgment in the For Women Scotland (“FWS”) case in April 2025. The court rejected the challenge on multiple grounds: GLP itself had no standing to bring the case, though the three other parties did. The court ruled that the EHRC’s interim guidance was lawful, in the court’s words “an accurate statement of the law without misstatement or material omission.” It was in accordance with the Supreme Court’s FWS judgment, which also applied to Health and Safety regulations governing employers and it did not breach the parties’ ECHR rights. (A good analysis of the judgment can be found here.) 

Briefly, the effect of the judgment is that: 

  1. employers must provide employees with single-sex facilities;
  2. when service providers provide single-sex facilities, these must be limited to members of that sex only i.e. trans people identifying as a gender different to their sex are not entitled to access them;
  3. both employers and service providers can provide mixed sex facilities and/or single use lockable rooms as well; and 
  4. trans people must not be left without any facilities at all. 

What has GLP’s response been? It has issued a press release which does not accurately reflect what the judgment says. See here. This risks misleading the public, service providers and employers — unless they take the trouble to get their own expert legal advice. Worse: it risks misleading trans people themselves. They are being told by a body which purports to fight for their “rights” that the court has ruled that they have rights which in fact the court has expressly said they do not have. Telling those who rely on you, or may only choose to read what you say, something which is not true, which is — in fact — the opposite of the truth, is unkind, an epithet usually hurled at every opportunity and with no justification at those asking for the law to be upheld. 

It is not the first time GLP has issued incorrect statements about cases it has lost. The most recent example was in its responses to the judgment in the Mermaids and The Charity Commission/LGB Alliance case. Mermaids sought to have the LGB Alliance’s charitable status removed. In order to succeed it needed to establish that it met the test to challenge the Charity Commission’s decision in the First Tier Tribunal and, if successful, show that the LGB Alliance’s purposes were not charitable. Mermaids failed to establish that its legal rights were in any sense affected by the decision to register LGB Alliance as a charity. It therefore failed on the first point. (So no ruling was made on the second point.)

The issue of standing to bring a judicial review may appear technical but is, in reality, fundamental, as was clear in the Sex Matters case about the Women’s Pond.  In that case the court held that it was for a person affected by the Corporation of London’s policy to take the appropriate legal action – not Sex Matters.

The response of Mermaids and its lawyers, GLP, to losing its case against the Charity Commission was to:

  • Ignore the reasons why they lost;
  • Airily dismiss this as merely “technical” (which pretty much describes all legal judgments);
  • Wrongly claim that they lost because the law was “so complex” when in reality it was because they were unable to meet the legal test on the facts; and 
  • Focus on some minor obiter dicta criticisms of LGB Alliance. 

The absurd culmination of this “Nelsonian” approach to the judgment has been the claim that, if they had only won the standing point, they would have won the case. “If I had won I would not have lost” is true but a bizarre response to a case which you have lost, especially since there appeared to be no engagement with the reasons why and what this meant for themselves and others.

In the latest case, against the ECHR, the GLP has gone further. It has now written to the Minister for Women and Equalities demanding that she withdraw the draft Code of Practice prepared by the ECHR to provide guidance to organisations following the Supreme Court judgment in the FWS case and making various other demands, based on what appears to be its incorrect understanding of the judgment. Why this demand is unjustified is discussed here.

This has been compounded by three MPs issuing statements repeating, in very similar terms, the incorrect description of what the judgment says. MPs are legislators and the very minimum voters are entitled to expect of them is that they read the judgment and understand the actual law, rather than repeating spin from disappointed losing parties. Disappointment at an outcome may be understandable; but it is no excuse for laziness and putting out incorrect information about the law to voters. 

Does this matter?

Yes.

There is something worrying — and dangerous — about misconstruction of a court judgment. As well as a finding on the issues before it, judgments are a signal both to the parties involved and to others to reflect on what it says and, as necessary, change their behaviour. In some cases, they may be a clear signal or instruction to government or public bodies to act. Ignoring and/or mischaracterising what a judgment says – whether because you don’t like it or disagree with it or to save face or because you don’t understand it – is fundamentally disrespectful of the court and the rule of law. There is also a risk of personal attacks on the judges in a manner which goes beyond good faith criticism of the legal reasoning. This is not a theoretical risk. It happened to the judges in the Miller case on Article 50 and Brexit in November 2016 with one newspaper calling them “Enemies of the People“.

Those doing it are essentially saying that they know the law better than the court. They are sending out two messages: you can ignore laws if you feel like it and deprive groups you don’t like or don’t care about of their rights; and, second, accuracy about what the law says does not matter. One day this sort of conduct could be used against groups they do care about, and they will then have nowhere to hide and no basis to object, as so well expressed here (“And when the last law was down, and the Devil turned round on you, where would you hide,…. the laws all being flat?”) It is also all too tempting for lay people to ignore this on the basis that this issue is not one that bothers you. But if MPs and lawyers behave like this on this issue, one day they might do so on something you do care about. 

Issuing misleading or inaccurate statements about the law might – (just about, if feeling very generous indeed) – be forgivable in non-lawyers. It most certainly is not when done by lawyers or legislators. It is a Trumpian approach, both to facts and the rule of law. It is a dangerous development in what is meant to be a democratic, pluralist country based on the rule of law. Neither legislators nor lawyers should engage in or be complicit in such conduct. 

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

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

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

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

Your legal rights

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

How can you persuade your employer to respect your rights?

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

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

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

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

Think about your risk appetite

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

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

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

Raise a grievance

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

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

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

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

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

  • Challenge him.
  • Leave.
  • Pretend not to notice.

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

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

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

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

Complain to an employment tribunal

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

How can I afford to litigate?

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

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

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

THREE QUESTIONS

What is the government up to regarding the Supreme Court’s judgment in For Women Scotland (2)? A question which breaks down into three.

  1. Does the government really accept the Supreme Court’s judgment?
  2. If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court.
  3. Who is responsible for giving the instructions to the government’s lawyers?

Acceptance

On the first, the government has certainly said so, on a number of occasions. Most recently, the Prime Minister said in Prime Minister’s Questions in response to Rebecca Paul MP that “the Supreme Court ruling must be implemented in full and at all levels” (see here). A clear statement? Apparently. But it begs the question as to what the government understands the Supreme Court ruling to mean. (Misunderstanding of the applicable law and previous judgments  – whether in error or deliberate – has been endemic on this topic.) The judgment itself was clear: it was accepted by all parties before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.

The government asked the EHRC to draft appropriate practical guidance, which it has done. There is a current issue about why the responsible Minister has not laid that draft Code of Practice before Parliament, which has been discussed by LegalFeminist here. But regardless of what that guidance says, the law is clear (guidance cannot change it) and, as the Prime Minister (and other Ministers) have said since April 16, the law (in place for 15 years, it’s worth remembering) must be implemented, as some organisations have already done (including the Labour party itself which has changed its internal rules relating to female only posts to limit these to women, excluding men who choose to identify as women).

Argument

The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. This is not unusual. It is there to provide clarification on the government’s position and to assist the court.

But that is not what leading counsel for the government is doing. The KC is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to the government’s counsel that the argument is “trying to rewrite FWS”. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. These are not the arguments of a neutral party. They are arguments which the GLP could and are making.

Why is the government doing so? What it is doing is inconsistent with what government Ministers have told Parliament. Who is being misled? Parliament? Or the courts? Both are serious matters.

Responsibility

This brings us to the third question. Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? And why? Formally, it is the Minister for Women and Equalities (Ms Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment.

Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way? Or is it what might be termed the permafrost layer of management (whether in the civil service or the legal function) who are determined to frustrate the judgment or make it unclear or confusing, either because of their own personal position or ideological views or simply because they do not like it?  None of these considerations should play any part in the advice to Ministers or indeed in Ministers’ actions. Are they doing so here? 

This topic has been bedevilled by a continuing serious concern: the extent to which government (and other public bodies) have allowed a gross conflict of interest to arise, through their embrace of Stonewall “advice” (Stonewall are not lawyers) and membership of its schemes, and to continue, to the detriment of civil service duties of impartiality and professionalism. These conflicts of interest are a serious breach of the Nolan Principles and have already led to one judgment against the police in Lindsay Smith v The Chief Constable of Northumbria Police in July this year for breaches of its duty of impartiality. LegalFeminist has commented here on the serious conflicts of interest which arise from association with one issue lobby groups such as Stonewall. 

Now we have government Ministers saying one thing to Parliament and government lawyers saying something inconsistent to the courts. This is unacceptable. Ministers need to clarify this – and without delay. The public and the courts deserve nothing less. 

Where Are Your Values Now?

Ever since the financial crisis, statements of values, mission statements and Codes of Conduct have proliferated like the most determined weed among pretty much every financial organisation. Changing the culture was the focus of regulators and senior management. What better way to start than to have a wonderful statement saying how well you would behave in future and how well you would treat anyone you dealt with, from your staff to a contractor working remotely thousands of miles away, customers, suppliers and so on.  Everyone would be embraced and treated well. If it all had a “kumbaya let’s teach the world to sing” flavour to it, even the most cynical, churlish observer would surely think this better than the sort of misconduct which had shredded the reputations and balance sheets of so many.

All of these documents contained much the same. Three items are always present: the need for “integrity” – often clarified as “doing the right thing”, “fairness” – which usually encompasses tolerance and no discrimination and a conflicts of interest policy – to help avoid the sorts of situations which might result in people doing the wrong thing. 

Let’s take one such example from NatWest. Its Code of Conduct says: “We act with integrity and take risk intelligently.” It talks about an environment “free from bullying, harassment and discrimination” (though it introduces a protected characteristic which does not exist in the Equality Act) and a “fair and inclusive environment where we all feel we belong”. It talks about “relentless curiosity” and “broad perspectives” and testing thinking on “people with different views”. It mentions its Conflict of Interest Policy and reminds people of the FCA requirement to “act with due skill, care and diligence”. On and on it goes with 13 pages of worthy sentiments and ambitions.

It’s not just the financial sector which has these. Pretty much every sector now has some sort of values statement and Code of Conduct. But for those in a highly regulated sector – such as finance, law, accountancy, the police – these statements are not just “nice to haves” but essential to showing that the entities, the professionals working in them, senior managers and the Boards of Directors fully understand and are taking steps to comply with their regulatory obligations, the law and their fiduciary and corporate responsibilities.

Now let’s look at the responses to the Supreme Court’s judgment in the For Woman Scotland (“FWS”) case. Some organisations have responded by expressing concern for trans employees; some have stated that they will continue with internal policies which are now not in compliance with the judgment i.e. the law. And others have signalled their determination to defy the law.

Is this wise? If your stated values are to act with integrity and comply with the law, stating that you will not do this because you do not like what a judgment says undermines and breaches whatever Codes of Conduct and values statements you have. It sends out a dreadful signal to your staff and others – that compliance with laws and rules is optional. There are plenty of bankers, traders, policemen and others – some of them in our prisons – who have taken this approach. Is this the message you want your staff (let alone others) to hear? Be in no doubt: some will hear this and some will act on it and you have just given them the green light to do so.

What about expressions of concern? What’s wrong with them? Well, context is everything and there are a number of things wrong or inadvisable. The judgment was about the rights of women and gay people, specifically lesbians. It expressly stated that trans people had not lost any rights. If your first reaction is to reassure people who have not lost any rights rather than say something to a much larger community whose rights were at risk and whose rights you may have prejudiced by your policies, you are signalling a curious set of priorities. Some might notice that you did not say anything when FWS lost twice in the courts below. Why not? Were the concerns of those affected not important? Did they not need support? How does this exemplify fairness or inclusivity? What message is it sending out to the women who work for you or are your customer, suppliers, contractors and so on? It suggests you believe in a hierarchy with one group’s rights considered more important than others when in fact the Equality Act creates no such thing

Two further points: risk assessment and conflicts of interest.

Legal risk is one of the risks that all organisations must take account of. The Supreme Court judgment did not come out of the blue. There were two decisions in the lower courts. There was an earlier FWS victory in 2022 which established that people without a GRC could not be considered members of the opposite sex. It was a Scottish decision but there was always an appreciable risk that it would be persuasive in an English court should the matter be litigated. There have been a large number of employment tribunal decisions raising issues around direct and indirect sex discrimination, harassment and protected beliefs since at least 2021. The risks of having policies in place which did not fully take into account a correct understanding of the law and the lessons to be learnt from those cases were ones which directors and managers had a legal and regulatory obligation to consider carefully. It is not at all apparent that they did so. Rather they seem to have delegated this to HR and/or outsourced this to external bodies. Again, was this wise? What steps were taken to ensure that HR was taking all the right factors into account? What steps were taken to ensure that legal advice was being taken from those expert in this area?

This takes us to one issue which has been overlooked: conflicts of interest. A Conflicts of Interest policy is essential in many sectors, particularly highly regulated ones. But it is applicable to every sector. A glaring and unaddressed conflict of interest, often more than one, is present in pretty much every scandal: whether in finance, the building sector, the NHS, the Post Office and many others. There are public inquiries and their reports which spell this out – time after time. 

But in the case of sex/gender, too often banks and others have sought advice from lobby groups with no legal expertise on how they should treat a particular minority. They have not done this for all minorities: religious groups, for instance. They have not asked hard questions about precisely what they were getting and why. Nor whether what they were being told was lawful. Nor whether it might affect others and whether such others should be consulted. Nor did they consider whether there might be a clash of interests and, if so, how this might be resolved. Nor did they notice that if they were paying a group such as Stonewall to approve their policies and place them high up in their index of approved employers, they were creating an obvious conflict of interest – one which they seemed not to notice or take any steps to mitigate. They did not ask themselves whether going “beyond the law” might possibly result in them breaking the law. It seems not to have occurred to anyone that doing what one single issue lobby group wants simply to get high up in its ratings is as bad – and as much of a conflict of interest – as stretching the rules to do what a high paying customer demands you do. They failed to apply their own policy to their own behaviour. There was, bluntly, a lack of “curiosity” and “due diligence” of a most elementary kind.

This is a corporate failure. It is a legal failure. It is a lack of due care, skill and diligence. And it is a failure of all of these – when a judgment comes out – not to take time and careful thought about what it says and means and how to implement it fully and fairly, having taken proper advice from those who really understand it – not those who seek to undermine or ignore it. This is basic stuff for any properly advised senior management team. It is one which has, unfortunately, too often been missing. Babies and toddlers have tantrums. Company Boards should not. It is high time company Boards and management at all levels took their responsibilities seriously, the most important of which is to comply with the law. Codes of Conduct are, after all, meant to be more than a bit of pretty PR.

FWS v Scottish Ministers: what to read before the hearing

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

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

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



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

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

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

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

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

Academics and practitioners

Dr Claire Methven O’Brien 

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

Dr Michael Foran  

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

What is a woman? The Scottish Government’s case 

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

On Defining Sex in Law by Michael P. Foran

Naomi Cunningham 

Sex, peanuts and statutory interpretation –

Discrimination law and the experimental method – 

Scott Wortley

Michael's piece is outstanding (as are the written submissions from Ben Cooper and David Welsh for Sex Matters). The interpretation arguments based on deeming provisions (which create legal fictions), the narrow effect of deeming provisions, purposive interpretation,

— Scott Wortley (@scottwortley.bsky.social) 2024-11-19T20:51:03.317Z

Organisations

Murray Blackburn Mackenzie

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

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

Sex Matters

Sex Matters’ intervention to the Supreme Court 

What about the other side? 

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

FWS Supreme Court case. 1. The “problem” FWS and others have with the current law is that it makes discrimination against trans people too hard. Preventing discrimination was the point of the legislation. In theory, therefore, this should be a very short case in which they are told where to go.

— A Mere Solicitor (@ameresolicitor.bsky.social) 2024-11-22T18:33:35.561Z

Courage, mes braves!There is, amongst trans people and allies, a certain amount of understandable nervousness about the U.K. Supreme Court hearing next week in the ‘For Women Scotland’ case.I don’t share that nervousness.

— Robin Moira White (@robinmoirawhite.bsky.social) 2024-11-22T18:04:27.483Z

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

Defining ‘sex’ in the Equality Act

Discrimination law and the experimental method

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sex, peanuts and statutory interpretation

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

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

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

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

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

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

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

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

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

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

Bailey v Stonewall

The decision is out in Allison Bailey’s appeal against the decision of the Employment Tribunal that Stonewall did not contravene s.111 Equality Act 2010. The Employment Appeal Tribunal has upheld the decision. 

The ET is the first instance tribunal. The EAT is the appellate tribunal which heard the appeal from the ET. Any onward appeal must go to the Court of Appeal – and can only be heard if permission is granted and if it satisfies the “second appeal test” of establishing an important principle or there is some other good reason for it to be heard. 

Allison Bailey was a barrister at Garden Court Chambers. A seasoned campaigner for lesbian and gay rights, she found herself in profound disagreement with the proposition then being advanced by Stonewall that some men were ‘truly’ lesbians, including those who had no intention of making a physical transition, if they said that they were. 

Both Ms Bailey and Stonewall made known their own views on this topic on Twitter. As a result of Ms Bailey’s tweets, Stonewall’s then Head of Trans Inclusion Kirrin Medcalf sent a complaint to Garden Court Chambers saying that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.” 

The detriments to which Garden Court Chambers then subjected Ms Bailey on the basis of her protected belief are set out in the ET decision and were found proved by the ET, which found that Garden Court had unlawfully discriminated against her, including by upholding Medcalf’s complaint against her. However, the ET did not find that Stonewall, through Kirrin Medcalf, had “induced” or “caused” that discrimination. 

She appealed to the EAT. 

Section 111 Equality Act 2010 prohibits anyone from instructing, causing or inducing another to discrimination against another:

111 Instructing, causing or inducing contraventions
(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

… 

The EAT had to consider what these meant, which is not something previously attempted by a court. Bourne J held that 

  1. In section 111(1), “It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.” [101]
  2. the word “induce” in section 111(3) “is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.” [105]  He also held that “it is in the nature of an inducement that the inducer intends the inducee to do what they are being induced to do.” [106] and so “inducing” in s.111(3) must be intentional. 

In other words, both instruction and inducement are intentional by their very nature. 

That left s.111(2) and “cause.” To this the judge applied a two-stage test: first, was the discrimination ‘caused’ by the defendant, applying a “but for” test – would it have happened but for the actions of the defendant? Then secondly, is it “fair, just and reasonable” to hold them liable? 

This came from a House of Lords authority, Kuwait Airways Corp v Iraqi Airways Co & Anor [2002] UKHL 19. This is a case which has provided significant authority in respect of the tort of conversion, litigation privilege and the iniquity exception, but it seems that this is the first time it has been cited in respect of discrimination. It has been cited in another EAT case, also decided by Bourne J, but in respect of litigation privilege rather than discrimination. 

The EAT held in this case that “by analogy with the approach to loss in Kuwait Airways, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the prohibited act on a “but for” basis and, second, that the causal connection is such that person A ought to be held liable. Borrowing Lord Nicholls’ phrase, those last words mean that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable.” 

It went on to hold that “For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.” The blame, ruled the EAT, was squarely with Garden Court Chambers for choosing to respond to the complaint in a discriminatory way. 

The application of a two-stage test to s.111(2) is an interesting one. It is very unclear as to whether this was actually argued by either party. It also seems at first blush that it may impose a more strenuous threshold than that set out in the plain words of the statute. However, it does undeniably bring the intention / effect into alignment with s.111(1) and s.111(3) and to that extent is an elegant solution. 

This is the first time that the courts have grappled with the definitions of s.111 and as an EAT judgment, this is binding until and unless overturned on appeal, or overruled by a higher court. 

Finally, a note which may sound into future cases. Paragraph 101 of the judgment provides that 

“section 111(1) requires that person A must not “instruct” person B to do in relation to person C anything which contravenes the relevant provisions. I agree with Mr Cooper that the question of person A’s mental state is subsumed into the nature of the prohibited act. It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction. So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

Put simply, the only intention of the person instructing need be that the person instructed carry out the instruction. If one body instructs another to implement policies that are indirectly discriminatory, the instructing body may be held liable.

This is likely not the last we have seen of s.111.

Legal Feminist Response To Financial Conduct Authority’s Consultation on “Diversity and Inclusion Financial Sector Working Together Drive Change”


Introduction

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

Executive summary

For reference to consultation document see https://www.fca.org.uk/publications/consultation-papers/cp23-20-diversity-inclusion-financial-sector-working-together-drive-change

As feminists, we welcome initiatives aimed at promoting diversity and inclusion (D&I) and we thank the FCA for its efforts to drive forward D&I initiatives. We particularly support the concept of evidence based strategies. However, the FCA’s proposals engage a range of legal issues and therefore need to be carefully considered by specialists to avoid unintended harm.  Our more detailed responses to questions are set out later in this response, but in summary:

  • The definitions of discriminatory practices and demographic characteristics are ambiguous and will cause confusion and so not meet the FCA’s objectives. We recommend the FCA adopt the definitions of discrimination and harassment applied in the Equality Act and the definition of bullying applied by ACAS, since these are all well understood and supported by a developed body of case law. The term demographic characteristics should be replaced with “protected characteristics” (with the possible addition of socio economic status) and should be defined by reference to the Equality Act.

  • Subject to our comments on the definitions, we support the proposals in respect of non-financial misconduct relating to colleagues and those relating to misconduct outside the workplace.
  • With regard to data collection, reporting and targets:
  • The sector has not yet done enough to tackle the cultural issues faced by women and the barriers which lead to women leaving the sector and which hold back their progression to senior roles. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  
  • We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of women and ethnic minority membership of boards as a result of board level initiatives and support the greater extension of this to senior leadership. 
  • More should be done to address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore track outcomes for women following pregnancy and maternity leave – for example through exit and promotion data, and develop specific strategies to tackle the issues and improve outcomes.
  • That said, lack of promotion cannot be solely blamed on pregnancy and family responsibilities.  Firms should also focus attention on systemic biases that persist regardless of family responsibility including by analysing data on evaluations, progression, allocation of opportunities and exit data.

  • Collection of data on sex (rather than gender) should be mandatory to reflect the protected characteristic in the Equality Act and so minimise data protection issues. This will better facilitate use of the positive action provisions of the Equality Act and therefore enhance achievement of the FCA’s objectives. It will also align with the mandatory disclosure regime for listed companies under the Companies Act. 

  • Allowing organisations to choose to report on gender instead of sex constitutes indirect discrimination since it places those with gender critical beliefs at a particular disadvantage and is not objectively justified.  As such, the FCA would be inducing a breach of the Equality Act.  We have suggested a more proportionate approach in our comments below.

  • Allowing organisations to choose between sex and gender will also lead to inconsistency and poor quality data. Encouraging collection of data on gender is therefore inconsistent with the FCA’s Public Sector Equality Duty (PSED) set out in the Equality Act 2010.

We have answered questions 4, 5, 7 8 and 10 to 17 of the CP below.

Q4: To what extent do you agree with our definitions of the terms specified? 

We disagree with the definition of discriminatory practices.

In order to achieve the FCA’s objectives, it is essential that key definitions are clearly defined in order to ensure transparency, consistency and fairness of application. Since discrimination and harassment can be unintentional and under the proposals there are potential career ending consequences if an individual is found responsible for discriminatory practices, ambiguity must be avoided. 

The definition of the term “Discriminatory Practices” includes discrimination,  harassment or victimisation due to “demographic characteristics”.  However “demographic characteristics” is not defined and it is unclear what is meant by this phrase. In particular, it is unclear whether it includes all the protected characteristics in the Equality Act such as religion and belief, marriage and civil partnership, and what additional characteristics are included.

Our recommendation is that:

  • Either the term demographic characteristics is replaced with “protected characteristics” by reference to the Equality Act; or
  • If the intention is to include socio economic status, to define demographic characteristic as meaning “a protected characteristic pursuant to the Equality Act or socio economic status”. 

Q5: To what extent do you agree with our proposals to expand the coverage of non-financial misconduct in FIT, COCON and COND?

We disagree with the proposed language in FIT and COCON including the proposed definition of harassment.

We agree that non-financial misconduct should be addressed in FIT COCON and COND and recognise the need for the FCA to effectively reverse the outcome in the Frensham. However we have concerns with regard to the scope of the proposed extension:

With regard to conduct outside of work:

  • We agree that dishonesty outside of work is always likely to be relevant to the fit and proper assessment.
  • However, we have material concerns about the proposal to include conduct outside of work that does not involve “a breach of standards that are equivalent to those required under the regulatory system“. In particular, the amendments suggest that a person may be determined to lack “moral soundness, rectitude and steady adherence to an ethical code” as a result of conduct that is “disgraceful or morally reprehensible or otherwise sufficiently serious”.  Terms such as “disgraceful” and “morally reprehensible” introduce a significant degree of ambiguity. Firms are therefore likely to find it more difficult to determine whether an individual remains fit and proper or what to state in a regulatory reference. This is likely to lead to a lack of consistency which is undesirable.  In that regard we would note that the UK financial services industry operates in and draws its workforce from a multi-cultural environment. Accordingly,  there are likely to be cultural and other differences of view as to what is morally wrong.  The FCA’s objectives can be fully met by limiting non-financial misconduct committed outside of work to situations where the conduct is reasonably judged by the employer to amount to a criminal offence (whether or not the individual is charged or convicted). 
  • With regard to conduct towards colleagues:
  • The proposed definition of harassment goes beyond that in the Equality Act, is ambiguous, and will lead to a lack of consistency in determining whether workplace conduct amounts to a breach of the Conduct Rules.  The proposed definition starts with the same language as that of the Equality Act, but goes on to cover conduct that “is unreasonable and oppressive” or “humiliates, degrades or injures” the other person. The reference to “unreasonable” conduct creates unnecessary ambiguity. This risks creating uncertainty for firms seeking to apply the definition. This is unacceptable given that a finding of harassment could end an individual’s career. The ambiguity will also lead to inconsistency between firms. We recommend that the COCON amendment adopt the Equality Act definition of harassment alone. This is a longstanding, well understood definition, with a well-established body of caselaw to assist in its interpretation. 
  • The Conduct Rules should also incorporate an important safeguard to interpretation in the Equality Act currently omitted from the proposed COCON amendment. Under the Equality Act harassment is unlawful if it has the proscribed effect (ie if the act in question creates a hostile etc environment) even if that effect was unintentional. However the Equality Act goes on to state that when considering if the actions have that effect, account should be taken of the other person’s perception, the circumstances, and whether it is reasonable for the conduct to have that effect. This ensures a level of objectivity in the assessment. While we also welcome the list of general factors for assessing misconduct in relation to colleagues set out in the draft COCON 1.3 , (such as whether the conduct is repeated, its duration, degree of impact and likelihood of damage to culture, the relative seniority of those involved and whether the conduct would justify dismissal), we recommend adopting the additional language from the Equality Act in addition to the proposed general factors.
  • It is our view that conduct toward colleagues should not be regarded as misconduct unless the employer reasonably considers that it amounts to harassment or victimisation within the meaning of the Equality Act and in respect of the characteristics protected by the Equality Act, or harassment within the meaning of the Protection from Harassment Act, or bullying within the definition provided by ACAS, or commission of a criminal offence.  

With regard to the threshold Conditions, we note our concerns stated above regarding the definition of Discriminatory Practices. 

 Q7: To what extent do you agree with our proposals on D&I strategies? 

We agree with the FCA’s proposal that firms should be required to develop evidence based strategies.

The sector needs to do more to tackle the cultural issues faced by women, the deconstruct the barriers that prevent women rising to the most senior levels, and to retain women in the sector. Firms need to better leverage data to analyse these issues, develop strategies to address them and measure progress.  In this regard we note:

  • Women typically are more likely than men to take time out of their careers for children, and to bear an unequal share of the burden of childcare. The sector has not done enough to understand and address the impact of pregnancy, maternity leave and caring responsibilities on women’s careers. Firms should therefore expressly track outcomes for women following pregnancy and maternity leave, and develop specific strategies to tackle the issues and improve outcomes, for example to address allocation of career developing opportunities. 

  • However pregnancy and maternity leave are not the sole reasons for the lack of women in senior positions. Firms should also focus attention on systemic biases that have led to this.

  • Some firms have tried to address under-representation of certain groups including women and ethnic minorities through a range of initiatives such as training, policies and mentoring programmes. While these programmes can have positive benefits, they have not to date led to sufficient progress. They are often fragmented, and do not tackle the fundamental structural and cultural issues that persist.  At a time when DE&I resource and funding is under material pressure, we welcome an evidence based approach that focuses on the issues facing women and other underrepresented groups, and which looks at why existing initiatives have not worked.

  • We consider that firms need to investigate and understand what is happening in their organisations, at every point in the employee life cycle, in order to identify where the true challenges are, and develop a strategy to address these challenges. This would involve examining  data not just on recruitment, but at every stage of decision making from intake to annual evaluation, pay and bonus, promotion, allocation of work and opportunities and through to leaver data. For example:

    • Is there evidence that women are less likely to achieve the highest ratings in evaluations? Does this indicate systemic bias in the performance appraisal system?Whether there is bias in the firm’s system for allocation of developmental projects, client relationships and opportunities that are more likely to lead to promotion and higher bonus awards. 

    • Firms should then use this data to build their strategy to tackle inequality in allocation of work and opportunities, bias in the assessment of women and ethnic minorities, lack of transparency in promotion processes, lack of pay transparency, presenteeism and lack of recognition for the differing levels of contribution made by women and men to positive workplace behaviours. 

Q8: To what extent do you agree with our proposals on targets? 

We partially agree with these proposals. 

We support the setting of aspirational targets and reporting against them, as a means of holding firms to account publicly. We note the progress made in respect of listed company boards as a result of initiatives to set targets for representation of women and ethnic minorities and support the greater extension of this to senior leadership.

However we qualify our response noting that:

  • Firms should limit themselves to targets in respect of the main protected characteristics which are measurably under represented compared to the general population. These are likely in most organisations to be sex, ethnicity and disability. In addition, we support targets based on socio economic status. 

  • As noted below in response to question 10, data and targets should refer to sex not gender.

  • Targets should be set by reference to context including the population from which the firm recruits.

  • The FCA should state clearly how socio economic status is to be defined in the context of targets and reporting.

  • Targets should remain aspirational. The recent highly publicised investigation into discrimination in recruitment at the RAF demonstrates the risk where targets are treated as akin to quotas and where inappropriate pressure is placed on individuals to meet them.

Q10: To what extent do you agree with the list of demographic characteristics we propose to include in our regulatory return? 

We disagree with the proposal to make collection of sex data optional and to make maternity data optional. 

  • Sex is the relevant protected characteristic in the Equality Act 2010. Collection of data on sex should be mandatory. Gender is not a protected characteristic and does not have a recognised meaning. The conflation of sex and gender diminishes the value of the data, and has the effect of introducing self-identification of gender.  This will hamper achievement of the FCA’s objectives, since one of  the main reasons for lack of advancement of women is structural sexism. If data on sex is not collected, structural sexism cannot be measured and addressed. 
  • In providing firms with the option of reporting on the basis of gender in place of sex, the FCA is itself inducing discrimination against those with gender critical beliefs:
  • Indirect discrimination occurs where a practice puts an individual and those who share their protected characteristic at a “particular disadvantage” unless this can be objectively justified. 
  • The gender critical belief (that sex is biological and immutable, and that gender is a concept based on the imposition of stereotypes on each sex) is a protected characteristic. 
  • If employers elect to collect data, set targets and strategy and report on gender rather than sex, those with gender critical beliefs will be placed in an invidious position: their alternatives will be to state something they do not believe in, ie their gender, which is unacceptable to them, not to respond at all, or to select “prefer not to say”.  
  • As such, they are deprived of the opportunity to have their most fundamental characteristic recorded. This places them at a particular disadvantage. Caselaw has made clear that the threshold for establishment of particular disadvantage is not in fact high.  A decision to collect data on gender not sex exceeds this threshold by some considerable margin.  It is more than reasonable for those with gender critical beliefs to wish to have their sex accurately recorded, not to record a gender which they don’t believe exists, and not to be placed in the invidious position where because they cannot respond to the term gender, and are not offered the chance to state their sex, meaning that one of their most fundamental protected characteristics is not recorded.
  • Such a requirement cannot be objectively justified.  While the aim may be to accommodate those trans-identifying colleagues who wish to record their gender, the replacement of sex with gender is not a proportionate way of achieving that aim.  It is deeply offensive to those with gender critical beliefs, and particularly to women. It clearly cannot under any circumstances be appropriate to entirely erase one protected characteristic – sex – in the interests of accommodating.  The more proportionate approach would be to collect data based on sex recorded at birth, combined with a supplementary optional question as to whether the individual considers they have a gender identity that differs from their sex recorded at birth.  This would also have the benefit of ensuring that the employer had accurate data on both issues.  
  • Accordingly, any requirement on or by firms to ask individuals to identify their “gender” is therefore discriminatory.  
  • We also envisage that many of those holding orthodox religious views would similarly disbelieve in innate gender overwriting sex and so would similarly be subject to discrimination.
  • Encouraging discrimination is inconsistent with the PSED.  
  • Following a legal challenge to the ONS, the UK Census collects data on sex. This approach has been followed by the Solicitors Regulation Authority (SRA).  The SRA’s approach is to collect data on sex, with three options: male, female and prefer not to say. This is followed by a question to accommodate those hold the belief that they have a gender identity (by asking if they consider they have a gender identity different to their sex as registered at birth). This approach enables accurate collection of data on sex and would better achieve the FCA’s objective.
  • As part of their diversity strategies, firms should be encouraged to use the positive action provisions in sections 158 and 159 of the Equality Act. Section 158 for example, facilitates initiatives such as sponsorship and mentoring programmes, diverse interview panels, diverse long lists, specialist open days and outreach programmes etc.  Section 159 enables a decision to appoint an individual from an underrepresented group if certain stringent conditions are met.  As Government and EHRC guidance makes clear, reliance on these provisions is dependent on having data. Accordingly, the ability to apply these provisions in respect of initiatives focused on women is dependent on having good quality data in respect of the protected characteristic of sex.  Data based on “gender” would not meet this requirement.
  • Under GDPR there is a clear legal basis for collecting data on sex, whereas that is not the case for “gender” which is arguably special category data.  
  • The FCA is subject to the PSED under the Equality Act meaning that it must have ‘due regard’ to the need to: 
  • eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited by or under [the EqA]
  • advance equality of opportunity between people who share a protected characteristic and those who do not share it and, 
  • foster good relations between people who share a protected characteristic and those who do not share it. 
  • Application of the PSED must be related to the protected characteristics in the Equality Act. Mandatory collection of data on sex would ensure that regulators are able to comply with the PSED:
  • Policy making that seeks to conflate two protected characteristics (sex and gender reassignment) or introduce the concept of gender, which is not a protected characteristic, would fail to advance equality of opportunity between those who share one of those protected characteristics and those that do not.  It would therefore be a breach of the FCA’s duties under the PSED to implement proposals to replace sex with gender, or treat sex as not mandatory.
  • In this regard we note that the Government has abandoned the use of the term “BAME” because (a) aggregation of data for different ethnic groups masks differences in outcome, and (b) because of the offence caused to groups who found themselves grouped together notwithstanding their very different experiences. By analogy, use of the term gender will aggregate the women and those born male who identify as trans, notwithstanding that they will have different experiences, particularly those who identify after their careers have been established. It has also been established that men and women have different risk taking behaviours.   It is very likely that from a risk perspective, the risk taking behaviour of those born male is more likely to align with their birth sex. Further, and as noted above, aggregation is offensive to those with gender critical beliefs.
  • We also consider that firms should collect data on pregnancy and maternity.  Pregnancy and maternity are major contributors to women leaving the sector, to the reduction in opportunities, and lack of promotion to more senior roles. The impact of pregnancy on women’s careers is far greater than the impact that becoming a parent or taking paternity leave has on fathers. In fact there is some evidence that men’s careers take off after fatherhood.  While pregnancy and  maternity leave are for a limited time period, firms could still measure and track progress for women on return from maternity leave – for example how long do they stay, are they overrepresented in redundancy exits, are they under-represented on promotion, and what is the impact on bonus. While the data sets may be relatively small, data protection concerns could be addressed by requiring firms to collect and report such data to the FCA,  but not publish it. 
  • We reject the suggestion that data on parental responsibilities is a more suitable long-term metric than pregnancy and maternity data. There is clear evidence that motherhood has a detrimental impact on women’s careers, and that parental responsibility does not affect men’s careers in the same way. Our view is that firms should collect and report data on pregnancy and maternity, and that data on parental responsibilities should be sub divided by sex.   

Q11: To what extent do you agree that reporting should be mandatory for some demographic characteristics and voluntary for others? 

We agree that in principle reporting of some characteristics should be mandatory and others voluntary:

  • We consider that the mandatory requirements should be limited to key demographic characteristics.  
  • Reporting on parental responsibility should be subdivided by sex, reflecting that typically the impact of parental responsibility on careers differs between men and women. Indeed there is some evidence not only that women’s careers are harmed by having children, the career and pay prospects of men improve.

Q12: Do you think reporting should instead be mandatory for all demographic characteristics? 

No. We consider that reporting (and resources) should focus on key characteristics, including sex, ethnicity and disability. 

Q13: To what extent do you agree with the list of inclusion questions we propose to include in our regulatory return? 

We agree save that the reference to feeling insulted or badly treated because of personal characteristics should be restricted to protected characteristics.

Q14: To what extent do you agree with our proposals on disclosure? 

We agree save that disclosure should relate to sex, not gender.

Q15: To what extent do you agree that disclosure should be mandatory for some demographic characteristics and voluntary for others?

Disclosure of data in respect of sex, ethnicity and disability should be mandatory since these groups are clearly under-represented in comparison to the UK population,

Q16: Do you think disclosure should instead be mandatory for all demographic characteristics? 

No – see our response to question 15. The experience of Legal Feminist is that reporting on multiple characteristics is likely to lead to a diversion of resources away from the key priority areas, as firms would need to spend time and resource on a campaign to build up reporting of data. 

Q17: To what extent do you agree that a lack of D&I should be treated as a non-financial risk and addressed accordingly through a firm’s governance structures? 

We agree.

Edinburgh University, freedom of speech and the heckler’s veto

Edinburgh University has for a second time allowed protestors to prevent the screening of the documentary film “Adult Human Female.” It was initially to be screened in December 2022, but cancelled when demonstrators occupied the university buildings. The rescheduled showing was arranged for 26 April 2023, but prevented once more by a large group of protestors. 

Protestors blocked off the entrances and physically stopped anyone from getting inside. The event was once again cancelled.

The protestors of course regard this as a victory for the prevention of intolerance. A spokesman told the Times that 

“Their argument is that trans women are the problem and are men in disguise and that is a lie. It is tarring a whole community and demonising them. Free speech is fine for everybody but it does not extend to the intolerant and hateful.”

There is nothing in this quote to suggest that the spokesman had in fact watched the film. But what is more remarkable is the spokesman’s claim that free speech “does not extend to the intolerant or hateful.”  

As we have said before, the relevant provision is Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows: 

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the first three paragraphs of his judgment in R (Miller) v College of Policing & CC Humberside [2020] EWHC 225 (Admin), Julian Knowles J summarised three famous citations on free speech: 

  1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
  2. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said that: “… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
  3. Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
    “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having  … “

That of course does not mean that freedom of speech is unlimited. It may be limited where a legitimate aim is pursued, although as was said in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127,

The existence of a broad legitimate aim is a mere threshold to the key decision in this case, as in almost all cases it must be. Such a legitimate aim must have limits. It cannot extend too far. In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.  

This is particularly so when the speech in question, here the film Adult Human Female, is itself an expression of protected views. 

Proportionality is key to any decision to limit free speech. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at [49]:

“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

There are two issues here, in terms of freedom of expression (I am not considering here the law on academic freedom, but only human rights. For those wanting further reading around academic freedom, the law in England and Wales can be found here and Scottish law here.) 

The first is whether the film Adult Human Female really is as offensive as the protestors claim. That in my view is inconceivable – it discusses proposed changes to the law from the perspective of one of the affected groups, namely women. 

The second is that even if a sector of the population disagrees with it, feels personally affected or is offended by it, this intimidation is disproportionate and anti-democratic. A protest that does not prevent the event from taking place must be possible. 

It is noteworthy that one of the groups who are highlighted as anti-democratic in the film are UCU. A number of the academic interviewees express disbelief that a union for those whose lives are dedicated to the pursuit of knowledge should behave in such an anti-intellectual way. I do wonder whether UCU’s enthusiastic support for the protests in Edinburgh is to spare its own blushes should their students watch the film and find out how spineless their tutors are when faced with intellectual disagreement. 

Freedom of expression is valuable. If the protestors’ freedom of expression were similarly impaired by mob justice, they would be outraged. They should be careful what they wish for.