This is a talk I gave at the FILIA conference on 17 October 2021.
I am going to try to explore how to reconcile two seemingly irreconcilable principles using an old pre Equality Act (EA) case, largely forgotten except for nerdy enthusiasts like me and many of you.
The two seemingly irreconcilable principles are
1. Equality law requires us to treat no one less favourably on grounds related to / because of their protected characteristic. No discrimination or stereotyping based on a person’s protected characteristic. Jobs, services etc should be available to all equally.
2. “One size fits all” means that some people, because of their protected characteristic, are either significantly disadvantaged by this or not even able to access a service. So, we sometimes need to discriminate, as it were for the greater good, to ensure this group can access a service. It may not be all or even most of the protected class; it may only be a small sub group – but they are disadvantaged, if everyone is treated exactly the same.
So how to reconcile this?
Well the 2008 case of Shah and Kaur v Ealing BC (better known as the Southall Black Sisters case) is a really good illustration.
Whilst it predates the Equality Act 2010, it follows the same principles.
The case concerned Southall Black Sisters, an organisation that provided services to Asian and Afro-Caribbean women particularly in relation to domestic violence. For a while, they received substantial funding from Ealing Council.
The Council decided in 2007 that it would in future encourage open competition by commissioning services according to agreed criteria. These included that services should be provided to ‘all individuals irrespective of gender, sexual orientation, race, faith, age, disability, resident within the Borough of Ealing experiencing domestic violence’. A one size fits all approach.
This requirement meant that SBS would no longer be able to limit their services to Asian and Afro-Caribbean women. They sought a judicial review of this requirement.
It is well worth everyone reading Lord Justice Moses’ judgement in the High Court being short, easy to read and generally excellent.
On the second day of the hearing, Ealing BC conceded that it could not maintain its decision and sought to resist the application no longer. It agreed to continue to fund Southall Black Sisters pending a further fresh decision as to the criteria it would adopt for the commission of services to assist the victims of domestic violence.
Recently, I met the Chief Exec of SBS Pragna Patel. I was enthusing, like a fangirl, about the case. She said it was she who was adamant they needed a written judgment to set out the legal principles clearly for everyone; and LJ Moses agreed to this.
The statutory basis on which this case was decided was the 1976 Race Relations Act (RRA), which, after the Steven Lawrence inquiry had been amended in 2000. It then included a precursor to what we know as the Public Sector Equality Duty, and was known as the Race Equality Duty.
“due regard for the need –
(a) to eliminate unlawful racial discrimination, and
(b) to promote equality of opportunity and good relations between persons of different racial groups.”
This wording clearly is the basis for s149 Equality Act
s149 Public sector equality duty (PSED)
(1)A public authority must, in the exercise of its functions, have due regard to the need to—
(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
In this case, no full equality impact assessment was undertaken until some time after these proceedings were launched. Further, the initial decision was predicated on some seriously dodgy use of statistics. Ealing BC observed that the largest proportion of domestic violence in its Borough was suffered by white European women. But that statistic was meaningless and irrational unless compared with the fact that 58 per cent of the female population of Ealing during the same period consisted of white European women. As the documents showed, 28 per cent of domestic violence was suffered by Indian, Pakistani and other Asian women. That statistic is of vital importance when one considered that those groups made up only 8.7 per cent of the population within Ealing.
In those circumstances it was plain from the statistics available to Ealing that a very large proportion of women from that background suffered from domestic violence in comparison to white European women.
Had Ealing appreciated that the important focus of their attention should be upon the proportion of black minority ethnic women within the borough and consideration of how high a proportion of those women suffered from domestic violence, it could never have reached the conclusion that there was no correlation between domestic violence and ethnicity.
It really emphasised the need for good quality equality monitoring which clearly identified the protected classes and sub-classes (so women/females as a class of sex and Indian, Pakistani and other Asian women as a subclass).
Further it is clear that Ealing did not appreciate the benefits of specialist services in assisting cohesion rather than working against it. Throughout the process it is plain that Ealing believed that cohesion could only be achieved through making a grant to an organisation which would provide services equally to all within the borough. But this is not true either factually or legally.
The EA (and RRA and Sex Discrimination Act etc) before it explicitly allows for exceptions to the general principles so that where reasonable or normally provided as such, single protected characteristic services, single sex services, separate sex services etc are legal. The commissioning of services (whether the result is to prevent this or allow these) needs to be done in way which is consistent with the PSED but also indirect discrimination, now s19 Equality Act.
19 Indirect discrimination
(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
Essentially, if the policy of “one size fits all” means that some people, because of their protected characteristic, were now substantially disadvantaged, then it would be unlawful, unless objectively justifiable. This might mean changing the policy to that of providing a variety of different services which collectively allowed all groups who needed such a service to be provided with one appropriate to their needs. However, it need not, and sometimes should not be the same service.
The White Paper preceding the 1976 RRA called Racial Discrimination (Cm 623-4) – made it clear that the Bill should allow the provision of facilities and services to meet the special needs of particular ethnic or national groups (see paragraph 57). The Compact on Relations between Governments and the Voluntary and Community Sector in England 2008, emphasised the importance of independent, non-profit organisations run by, for and located within black minority ethnic communities.
That sector, it said, brings distinctive value to society. Cohesion is achieved by overcoming barriers. That may require the needs of ethnic minorities to be met in a particular and focussed way. The Southall Black Sisters illustrate that principle. For example, in the second statement from Pragna Patel she identified the experience of the Southall Black Sisters in demonstrating how social services may be provided to those where a single-service provider may be reluctant to intervene in the cultural and religious affairs of a minority for fear of causing offence. Specialist services such as those provided by the Southall Black Sisters avoid those traps and help women to leave a violent relationship by using what she describes as –
“these very concepts of their culture such as honour and shame to support them in escaping violence and re-building their lives.”
“Specialist services are more effective in empowering minority women so that they can take their place in the wider society.”
So, if true for ethnic minority women in 2008, why not now? Or, more widely, for biological women? Why not take the specialist service principles from this case and apply to particular services like trauma informed support for females who have experienced male violence? Or specialist services for other single protected characteristics?
Karen Ingala Smith wrote a very important blog about the importance of single sex services to provide for trauma informed services for women subject to male violence.
She wrote about the effect of trauma on natal women and girls from male violence causing PTSD.
“After trauma, the brain can be triggered by something that would barely register for someone else, interpreting something that for many people would be unthreatening as a serious threat or danger, for example the presence of a man, particularly where not expected”
She goes on “For many women this means excluding men from their recovery space, and yes, this includes those who don’t identify as men. Their behaviour, the likelihood that they themselves may be abusive, is not relevant. If it is not women-only, it is not trauma informed for women who have been subjected to men’s violence.”
Her evidence suggests women only spaces provide the equivalent for some biological females to the sort of specialist care provided to minority ethnic communities by Southall Black Sisters. And no reason why trans people, people over 60, disabled people etc don’t also have specialist needs that call for single protected class services.
The irony of specialist charities like Gendered Intelligence, who provide specialist services to only the trans community complaining about specialist services is not wasted on discrimination lawyers.
LJ Moses ended his judgment “..Specialist services for a racial minority from a specialist source is anti-discriminatory and furthers the objectives of equality and cohesion. I can do no better than to conclude this judgment – before giving the agreed order – by quoting the chairman of the Equalities Review in the final report Fairness and Freedom, published in 2007:
“An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”
This approach should inform the way forward. Policy should be made cognisant on the effect it has on even small groups of every protected class, whether intended or otherwise. We need to be prepared to allow for, fund and defend specialist services. One size doesn’t always fit all.
What are “sex based rights”? What do women mean by the phrase – and do we even have them?
A pithy answer is that they are the remedy to sex based wrongs, perhaps – depressingly – a far more readily identifiable set.
What is usually meant by “sex based rights” are the exceptions set out in the Equality Act allowing services and public functions to offer a single or separate sex service, and to offer this on the basis of biological sex, as well as allowing employers to recruit for only a member of one sex where there is a genuine occupational requirement, women only membership associations, and women only sports.
They are exceptions because they do not arise in the course of the mundane, or in the course of most recruitment. The word “exception” here simply means that you cannot separate by sex “except” where you can – it does not denote that you must have an “exceptionally impressive” reason for doing so.
So if you run a greengrocers you cannot insist that you only provide your service to men, and if you run a pub you cannot have a ladies’ room separate to the men, as used to be common. If you are recruiting an admin assistant it would be unwise to ask for women only. If you are the proprietor of a golf club you must not only allow men into the bar.
So the ordinary rule for services is that everything is mixed sex, except where
“only persons of that sex have need of the service,” s.27(2) Schedule 3 Equality Act – for example, a lesbian support group;
“The service is also provided jointly” and “would be insufficiently effective were it only to be provided jointly,” s.27(3) Equality Act – for example, a mental health group which offers both a mixed group and a men’s group catering to men’s specific needs;
“A joint service would be less effective” and “the extent to which it is required by persons of each sex makes it not reasonably practicable to provide separate services,” s.27(4) Equality Act – for example, a feminist society in which consciousness raising sessions are held;
The provision is at a hospital or similar establishment providing special care, supervision or attention, s.27(5) Equality Act;
The service is likely to be used by two or more persons at the same time and a person of one sex might reasonably object to the presence of a person of the opposite sex, s.27(6) Equality Act – for example a changing room;
There is likely to be physical contact between service users and a person might object if that were from a member of the opposite sex – for example a single sex martial arts class, s.27(7) Equality Act.
S.28 to Schedule 3 goes on to clarify that providing a single sex or separate sex service can extend to excluding a person on the basis of gender reassignment – if the conduct in question is a proportionate means of achieving a legitimate aim.
It should perhaps be noted here that not all exceptions in the Equality Act are sex based. There are a number of age based exceptions for example – and as far as services go, s.30 Schedule 3 provides a general dispensing power allowing service providers to provide a service to those who share a particular protected characteristic if the provider “reasonably thinks it impracticable” to provide the service to others.
In addition to the exceptions for service providers, employers may, if justified, require an employee to have a particular characteristic, s.1 Schedule 9 Equality Act. In the context of sex based rights, that might mean recruiting a female carer to provide intimate personal assistance to a woman, or a female counsellor for a rape crisis or domestic abuse centre.
Membership organisations may restrict membership to persons who share a protected characteristic (s.1, Schedule 15 Equality Act).
(There are also single sex provisions for sports, which this post, already too long, doesn’t touch on further.)
Are these truly “sex based rights”? As armchair pedants will be swift to point out, these are exceptions to the rule of indiscriminate provision rather than rights. The Equality Act does not seek to confer rights; it ensures protections. But what it does recognise is that equality in its purest form – whereby no service provider was allowed to distinguish between child and adult, man and woman, belonging or not to a particular faith – would lead to injustice. In particular, it reflects that equality does not always mean treating everyone the same. Sometimes it also requires removal of barriers, or making provision to address particular disadvantages. What makes the exceptions actionable rights are the provisions of s.19 which prohibits indirect discrimination and the Public Sector Equality Duty (PSED) contained in s.149. A body which declined to consider using the exceptions would be vulnerable to a claim in the County Court for indirect discrimination or to judicial review in the case of a public sector organisation which failed to properly apply the PSED.
And where state bodies are concerned, it also works alongside the Human Rights Act, which does confer (or confirm) rights – controversial at the time of the introduction of the HRA, because of the spectre of a precedent of a benevolent government ‘granting’ rights to citizens which could then be snatched away by a despotic successor. The HRA includes freedom from degrading treatment, the right to privacy and dignity, and freedom of association, all of which are relevant to the provision and retention of single sex services.
So why are they controversial, in a way that corresponding exceptions for other protected characteristics such as age or disability are not?
The answer seems to lie not in our attitude to sex based rights, but in our attitude to sex based wrongs. It is by no means novel to suggest that such wrongs are historic and now cured by our supposedly perfect and equal society: the surge in ‘men’s rights activism’ of the 90s and 00s was predicated on the idea that women had already gained all the rights we could legitimately expect, that the playing field was entirely level, and any further progress was “demanding special treatment.”
The nineties were a particular hotspot for such arguments, as the marital rape case (R v R  UKHL 12) was argued and ultimately won. On 23 November 1991, Neil Lyndon produced an article entitled “On how civilised society is being corrupted by feminists and their mad doctrines” in the Spectator, complaining that the “Spare Rib hoods” had infiltrated the law: “The Law Lords tipped their wigs in the direction of the hoods when they reinterpreted the law on rape to include acts between a married couple… they acceded to and gave established respectability to the idea that normal men are rapists.”
The following year, on 17 October 1992, Barbara Amid expressed horror that the government is now “dancing to the tune of radical feminists.”… “In the past 20 years, our society has gone a good way towards becoming a matriarchy… And just as I, being a supporter of liberal democracy, would fight a patriarchy, the fight now must be against matriarchy.”
None of this, of course, was exclusive to the 90s. As far back as 1953, the Lady column in the Spectator magazine was complacent: “The time has at last come when the self-respecting intelligent woman need no longer call herself a feminist… The battle is over. The women have won.”
What is new, though, is that such strictures are no longer the preserve of the conservative. Helen Pluckrose wrote in October 2020 in this thread that “I don’t believe sexism against women is a mainstream thing.”
This is not a criticism of Helen, whom I have always found to be a lucid and interesting thinker, whether or not I agree with her. The point is that many, many people did agree with her that while virtually all other forms of prejudice continue to exist and should be countered, sexism against women does not – or at least not in the ‘mainstream.’
For those who take this position, increasingly not just conservatives but also those who would regard themselves as social justice connoisseurs, there is no point to sex based rights because there are, by that definition, no sex based wrongs.
If male violence is not targeted at women by sex, but the random violence of a few ‘bad apples’ misbehaving, then women do not need special measures to ensure their protection from it. If there is no sexism, then there is little basis upon which to rest a belief that a joint service would be less effective than a single sex one, and no basis upon which a member of one sex might ‘reasonably object’ to the presence of a member of the opposite sex. If there is no sexism, no barrier to female participation, then women only shortlists are a narcissistic indulgence, women only associations unnecessary and suspect, women only occupational requirements nothing more than special treatment for whingers.
For those who do see sexism, sex based rights – the recognition within the Equality Act that single sex spaces and provision are sometimes necessary – are crucial.
While male violence continues to be targeted at women by sex, some survivors will need places where they can breathe, speak and recover freely, without the hypervigilance arising from hearing a male voice or seeing a male person – however delightful that person may be. Post traumatic stress reactions do not pause to reflect on “not all men.”
While sexism persists, women will need privacy and dignity when changing, when in need of personal care, or in any of the myriad situations envisaged by the Equality Act’s exceptions when a single sex service can be justified.
While women are subject to FGM, sexual violence, forced marriage, honour killing, corrective rape, military rape, forced pregnancy, forced abortion, selective abortion, sexual harassment, prostitution, pornography, objectification, sex trafficking, maternity discrimination, unequal pay, disproportionate caring responsibilities, domestic violence, financial exploitation and control, political underrepresentation, inadequate healthcare, limited control of their own bodies and reproductive choices, systemic barriers to occupational progress and promotion, silencing, belittling or any of the other ways in which sexism, misogyny and patriarchy are enforced, “sex based rights,” however inadequate a shorthand that may be, are a hallmark of a civilised society. Until sexism is eradicated, sex based rights are indispensable.
Stonewall have signed up more than 850 companies, charities, government departments and public authorities to be “Stonewall Diversity Champions.” Naomi Cunningham examines the risks for participating bodies.
Stonewall is an LGBT charity and lobbying group that started small, edgy and rebellious in 1989. It has grown. These days, it has an enviably cosy relationship with the Establishment and an annual income of over £8M.
Stonewall’s employer programmes
Stonewall runs two related programmes that employers can join to demonstrate their commitment to LGBT equality, the Workplace Equality Index and the Diversity Champions scheme.
More than 850 employers have signed themselves up as Diversity Champions. It’s an impressive list, full of global mega-corporations and household names; magic circle law firms; prestigious universities; government departments and regulators. Amazon, Marks & Spencer, Nestlé; Imperial College London, Oxford University, the Royal College of Art; the Crown Prosecution Service and the Care Quality Standards Commission, to name but a few.
It’s not completely clear from Stonewall’s website how the two programmes interact, but at any rate they explain that one of the benefits an employer gets with membership of the Champions scheme is “in-depth, tailored feedback” on their submission to the Workplace Equality Index. The Champions evidently get their money’s worth out of this feedback, because every single oneof the top 100 employers on the Workplace Equality Index is also a Diversity Champion.
Qualifying for the Workplace Equality Index
So what do you have to do to win one of these coveted places on the list of Stonewall’s top 100 employers? Stonewall’s own website is a little bit coy about that, but thanks to a Freedom of Information Act request submitted on Whatdotheyknow.com (thank you, M Hunter), we can see the whole of Edinburgh University’s 2019 submission, complete with the questions they were required to answer, and Stonewall’s feedback. As a result, Edinburgh University makes an illuminating case-study. They had learned their lessons well, and received approving feedback from Stonewall, but even so they didn’t make it into either the 2019 or the 2020 “Top 100 Employers” lists. We can infer that their levels of compliance are far from exceptional even among “Diversity Champions.”
The Workplace Equality Index submission is a major piece of work. The questions alone run to 4,000 words, divided into 10 sections:
1. Policies and benefits
2. The employee lifecycle
3. LGBT Employee Network Group
4. Allies and role models
5. Senior leadership
8. Community engagement
9. Clients, customers and service users
10. Additional work
Edinburgh University’s answers run to more than 15,000 words, excluding the documents they appended. But the work that goes into such a submission is of course much, much more than simply collating the evidence – detailed though it is – that Stonewall asks for. The point of the exercise is to embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture. So policies must be drafted. Staff must be trained on them. Senior managers must demonstrate buy-in. Junior and academic staff must be shamed or coerced into active “allyship.” Efforts must be made to influence suppliers, customers and service users. Social media accounts must toe the party line.
Sampling the submission
Let’s take a couple of examples from Edinburgh University’s submission. Question 1.2 asks:
Does the organisation have a policy (or policies) which include the following? Tick all that apply.
A. Explicit ban on discrimination based on sexual orientation
B. Explicit ban on discrimination based on gender identity and gender expression
C. Explicit ban on bullying & harassment based on sexual orientation
D. Explicit ban on bullying & harassment based gender identity and gender expression
E. None of the above
The University ticks the first four, and obediently pastes the relevant excerpts from their “Dignity and Respect” and “Trans Equality” policies.
There are two points to note here. The first is that the demands Stonewall makes go beyond what the law requires. Sexual orientation is a protected characteristic under the Equality Act, as is gender reassignment (which doesn’t get a mention in Stonewall’s catechism). But “gender identity” and “gender expression” are not, and it’s far from clear what they mean. If “gender expression” is about performing gender stereotypes – whether of dress, make-up, behaviour, interests, or in any other way – then it is impossible and undesirable to ban all discrimination on grounds of gender expression. Some workplaces will justifiably require long hair to be tied back or covered; high heels will be inappropriate or dangerous in many environments. Interrupting, ignoring and talking over women is a core part of many men’s gender expression, but employers are entitled to – and indeed should – take steps to control it.
The second point is that Edinburgh University publishes all its equality policies, here. What’s striking about that list is that gender reassignment is the only protected characteristic that has its own dedicated policy. There is no “Sex Equality Policy,” no “Disability Equality Policy,” no “Race Equality Policy,” no “Religion or Belief Equality Policy.” There isn’t even a general “LGBT Equality Policy.” But there is a special “Trans Equality Policy.”
Now, it is often said by the pious that “rights aren’t pie”: that is to say, there’s no fixed quantity of “rights” so that if one group gets more, the others must get less. That’s a half-truth. Rights may not be pie, but time, attention, energy and money most definitely are pie. If University managers are pouring hours of their time into drafting and implementing Trans Equality Policies that meet with Stonewall’s approval, that’s time they won’t have spent wondering why their female staff earn less on average, or occupy more junior lectureships but fewer Chairs than their male colleagues; or checking that colleagues of a hearing-impaired member of staff know how to ensure that she is fully able to participate in meetings; or trying to work out how to eradicate the effects of unconscious racial bias in vivas or disciplinary proceedings.
Question 4.5 asks:
Does the organisation support all non-trans employees (including lesbian, gay and bi employees) to become trans allies through training, programmes and/or resources?
The University describes the training:
A couple of our Allies continue to present training on what they had learned from their training, covering topics such as the gender-bread person. They also promote rainbow laces and rainbow lanyards at the training. They reach out to SPN [Staff Pride Network] and with their help with their ‘lunch-and-learn’ sessions on LGBT+ issues, specifically focusing on trans issues.
Any Stonewall resources/emails/programmes are shared with Allies. The EDI [Equality, Diversity and Inclusion] fund many training events and expenses where possible. The EDI team have booked and funded 4 places at the last November Stonewall Scotland Conference in Edinburgh in November 2018. Two LGBT+ Committee, 1 x Allies and one student attended. Also advertise & fund allies to attend any other relevant Stonewall events. Two places have been purchased for the forthcoming Stonewall Scotland Conference.
We are consulting on a Trans and Non-Binary Gender Identity Online Toolkit to give guidance to all staff on being an ally to trans and non-binary colleagues. The policy will be supported by the Trans and Non-binary Gender Identity Toolkit to give guidance to all staff on terminology and how to be an ally to trans and non-binary colleagues.
This all involves work, time, money. Allies attend training, paid for by the University – and often provided by Stonewall. They present to colleagues, who must spend time listening to them. A toolkit on allyship is in production: someone has to draft it, others have to read it and be consulted on it. Rainbow laces and rainbow lanyards have to be bought and handed around.
There are pages and pages of this stuff. The investment in time and attention demanded of any organisation that is a “Stonewall Champion” or wishes to have a shot at making it to the “top 100” list – is immense. The submission document itself must have taken someone days (at least) to compile, but the work that goes into preparing the submission document is only the tip of the iceberg – it is only the evidence of the real work of submitting to Stonewall’s onerous demands.
One of the benefits of Stonewall Champion membership is that the organisation receives detailed feedback on its efforts to comply. This sample from section 1 (“Policies and benefits”) is representative:
[P]lease be really explicit that all policies are scrutinised for inclusive language. There is no mention of what bullying harassment may look like for the individual L,G or B identities. Overall ban is there, but needs to go further to explicitly include all sexual orientations and what this bullying and harassment looks like. Strong policy section, however use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… Please ensure your policy explicitly includes non-binary identities, and remove binary language around trans… We would look for more information about language and terminology specifically for non-binary identities, such as around specific pro-nouns.
Submission without reservation
You have to hand it to Stonewall. It’s an astonishingly audacious, skilful and successful operation. In summary, it goes like this:
You pay for lots of Stonewall training.
You pay for membership of a scheme that wins you the privilege of being – by turns – patronisingly congratulated and sanctimoniously nagged about how well you’ve absorbed and implemented that training.
You lavish management time on embedding that training in every aspect of your operation, from Board to suppliers, from clients or users to middle management. You pay for more Stonewall training along the way.
Stonewall set you a lengthy open-book examination on how well you’ve done that.
You spend hours and hours plodding through that examination, meekly uploading your policies, giving examples of initiatives, training sessions, social media engagement etc.
Stonewall mark your submission and give you feedback on areas on which you could improve your compliance with their every demand, very likely involving more Stonewall training.
You do the same again next year.
It’s easy to see what’s in it for Stonewall. They’re a lobby group. Persuading people to their way of thinking is what they’re for; and if people are willing to pay them substantial sums of money for the privilege of being intensively and elaborately lobbied and then catechised on the degree to which they have absorbed and implemented the lobbying, what’s not to like?
What’s more mysterious is why serious organisations full of serious grown-up professionals are willing to submit to these time-consuming indignities. How does it come about that magic circle law firms, government departments, universities and the rest are prepared to be so publicly suckered?
You might think employers would discern a significant reputational risk – not only from being associated with an organisation that has suffered Stonewall’s recent run of startling lapses of corporate judgment (their extraordinary attempt to silence a black lesbian barrister by complaining to her chambers and their irresponsible promulgation of scaremongering claims about effects of the recent High Court decision in Keira Bell’s case on the mental health of young people are just two examples) – but also simply in being publicly taken for this ride.
But there are concrete legal risks too.
Judicial review of policies
If you run a widget factory, and it may not matter very much to anyone other than your staff if you let Stonewall rainbow-wash all your policies. (Though your staff may care; I’ll come to that shortly.)
But if you are a public body, your policies and public communications will matter more widely, and some of them will be amenable to judicial review. You will be bound by the public sector equality duty at section 149 of the Equality Act, and you will generally be required to act rationally and lawfully, and not to place improper or arbitrary fetters on the manner in which you make decisions, in the performance of your public functions. Policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful.
In 2020, a 13-year-old schoolgirl commenced judicial review proceedings against Oxfordshire County Council (a Stonewall Champion), complaining of their Trans Inclusion Toolkit. The Council had consulted with Stonewall and with their own Children and Young Person LGBT+ Inclusion Group on the drafting of the policy, but had not consulted more widely. The policy made various erroneous statements about the law. The High Court gave the claimant permission to seek judicial review, and at that point Oxfordshire withdrew its Toolkit – so the matter was never decided in court.
A different teenager challenged the Crown Prosecution Service over its guidance to schools about hate crime and its membership of the Champions scheme; the latter failed, but only after the CPS had permanently withdrawn the schools guidance.
In March 2021, Fair Play for Women challenged a decision by the Office for National Statistics to produce guidance advising respondents to the 2021 Census that they could answer the “sex” question by reference to state-issued documents, many of which can be changed on request. The High Court gave permission for judicial review and granted an interim order requiring the guidance to be taken down, pending an expedited hearing; and then the ONS accepted that the guidance was wrong and withdrew it permanently, also agreeing to pay FPFW’s legal costs.
Other challenges to Stonewall-inspired policies are under way, including to the Ministry of Justice’s approach to trans women in prison; to the EHRC’s guidance on single-sex spaces; and to the College of Policing’s policy on the recording of “non-crime hate incidents.”
These kinds of challenges are likely to proliferate, because any public body that allows Stonewall to dictate or heavily influence the drafting of its policies will end up with policies that better reflect Stonewall’s views about how the law ought to be in than the reality of how the law is.
Judicial review of participation in Stonewall’s schemes
Public bodies’ decisions to join Stonewall’s schemes may themselves be open to challenge: either the decision to make a submission for inclusion in the Workplace Equality Index or to sign up as a Stonewall Diversity Champion, or both.
A recent application for permission to seek judicial review of the Crown Prosecution Service’s membership of the Champions scheme failed at the permission stage. No transcript of that judgment is available, but it seems that the judge thought that membership of the scheme related only to the CPS’s role as an employer, and was unlikely to impinge sufficiently on its performance of its public functions to make it amenable to judicial review.
That conclusion does not seem to me to take adequate account of the extent to which a submission to Stonewall’s Workplace Equality Index reaches – quite deliberately – into every aspect of an organisation’s operation, both its relations with its staff and its public-facing activities. This excerpt from the Safe Schools Alliance’s live-tweeting of submissions made by Ian Wise QC on behalf of the claimant suggests that the judge may not have fully informed on that question:
Issue of disclosure, we are somewhat in the dark, what documents have been transferred between @cpsuk & @stonewalluk.
As a public body, we should know what’s going on with the CPS.
Has Stonewall trained CPS?
In fact, thanks to M Hunter’s FOIA request, we know (even if Cavanagh J didn’t) that Stonewall’s interest in the activities of its Champions extends well beyond their role as employers: sections 7, 8 and 9 of the Workplace Equality Index catechism deal, respectively, with procurement, community engagement and ‘clients, customers and service users.’ If the judge’s conclusion in the CPS case were correct, one might hope that any public body would answer those questions crisply: “We are a public body, and it is not appropriate for us to be answerable in private to a lobby group on matters relating to the performance of our public functions.” Nevertheless, given the large proportion of Stonewall’s Top 100 Employers that are public bodies, it is reasonable for the public to wish to be reassured on that count.
As well as the questions that explicitly interrogate organisations about their outward-facing activities, there is a final catch-all question:
Has the organisation done any further work in the past year to improve the working environment for LGBT staff?
The naive reader of that might think that this question only related to the organisation’s internal relations with its employees. The less naive reader will recall incidents like the attempt by employees at Hachette, publisher of JK Rowling’s latest children’s book The Ickabog, to force them to drop the book, or the mass letter signed by 338 Guardian employees protesting that the paper’s “transphobic content” interfered with their work, and suspect that what Stonewall and its Champions mean by “improving the working environment for LGBT staff” may well include ensuring that the organisation and all its employees toe the Stonewall line in performance of all functions, private or public.
In the case of Edinburgh University, the first two lines of its answer to the question would tend to confirm that suspicion:
The EDI Team participated in the recent Stonewall Gender Recognition Act webinar. The slides from the webinar were shared with the SPN. EDI and SPN [Staff Pride Network] will meet to discuss GRA consultation.
The slides themselves were not disclosed in response to the FOIA request, but this looks remarkably like the University submitting to having its own equality specialists “trained” by Stonewall on highly controversial proposals to reform the Gender Recognition Act, on which Stonewall’s stance is not merely to campaign for changes in the law, but to slur all opposition as “transphobic.” Judging from the definition of “transphobia” appearing on Edinburgh University’s website, Edinburgh’s EDI team learned their lessons well.
In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review. The failure of the application for judicial review of the Crown Prosecution Service’s decision should not be taken to offer any other public body much comfort on this front.
Judicial review only applies to public bodies, or other bodies exercising a sufficiently important public function for the courts to assume a supervisory jurisdiction over them. But all employers, public and private, are subject to the Equality Act. There are risks for employers here, too, in signing up to Stonewall’s programmes.
Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.
If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.
Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree. One would hope that most employees would refrain from bullying or harassing any of their colleagues on any grounds, including gender reassingment; and most employees will be content to use their trans colleagues’ pronouns of choice. But it is also to be expected that employees will remain aware of their colleagues’ biological sex. Much of the time this need not arise: in most workplace contexts, sex is irrelevant and can (and should) simply be ignored.
But there are times when sex does matter. If a female employee goes to HR with a complaint that she feels embarrassed to use the ladies’ toilets when she has her period, because a colleague who is a trans woman has taken to using the same facilities, what is to be done? If she is told that the problem is with her, and her “transphobic” attitude to her colleague, she would seem to have grounds for a complaint of sex discrimination and/or discrimination on grounds of religion or belief. If she walks into the toilet, but turns around and leaves on seeing her trans colleague there, will she be disciplined for “transphobic bullying”? If so, again, she is likely to have grounds for a claim.
If employers try to insist that employees either internally or outwardly accept that “trans women are women” in every possible sense, and there are no circumstances in which biological sex matters, they are imposing not merely a behavioural code on their employees, but a positive belief system.They are not entitled to do that:disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief. (The employment judge who decided Forstater v CGD Europe at first instance may have taken a different view, but that decision does not set a binding precedent and has been heavily criticised, e.g. by Karon Monaghan QC on the UK Human Rights Blog. It seems unlikely to survive the scrutiny of the Employment Appeal Tribunal.)
Occupational requirements raise further tricky problems. It is lawful to restrict certain jobs to one sex or the other, if being of one sex or the other is an occupational requirement, and the application of that requirement is a proportionate means of achieving a legitimate aim. Marks & Spencer are undoubtedly entitled to restrict jobs as bra fitters to women. The legitimate aim is to secure the privacy and dignity of customers seeking help with choosing a bra that suits them; and restricting the work to women is proportionate, because the overwhelming majority of women will prefer not to take their bras off in the presence of a man they do not know. But if Marks & Spencer (who are a Stonewall Diversity Champion) decide that those jobs can be given to self-identifying trans women who do not have a GRC, then they will have destroyed the legal basis on which they restricted them to women in the first place. Any man may apply, and then sue for sex discrimination when he is not short-listed because he is a man.
There’s a more diffuse way in which being a Stonewall Champion could make an employer more vulnerable to discrimination claims, too. Think back to Edinburgh University’s “Trans Inclusion Policy.” It is the only equality policy the University has which is specific to a single protected characteristic.
Imagine a substantial organisation with a staff population of 1000, which happens to be as near as possible an exact demographic mirror for the population of the UK as a whole. The total trans population of the UK is estimated to be between about 0.3% and 0.75%. of the total. About 51% of the UK population is female. About 16% of adults of working age have disabilities. About 1.3% are Hindu. About 6% have diabetes. About 3.4% of adults of working age are Black. On the basis of those percentages, our imaginary organisation employs 510 women and 490 men; 160 staff with disabilities of whom 60 have diabetes; 40 Black staff; 13 Hindus; and maybe between 3 and 8 trans staff.
Now imagine that this organisation has – like Edinburgh University – adopted a specific Trans Equality Policy (with all the training, mentoring, monitoring, social media presence, rainbow merchandise and so on that that entails). But – also like Edinburgh University – it has no similar policy or programme of activities focusing on sex, race, disability, age, religion and belief, maternity or marital status.
In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women. And many of the respects in which it has decided, at Stonewall’s instigation, to gold-plate trans rights represent blatant incursions into women’s rights in particular. In a suitable case, that statement about an organisation’s priorities could legitimately form part of the material giving rise to an inference of discrimination on grounds of sex.
Workplace health and safety obligations
Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities, unless instead they provide separate lockable rooms to be used by one person at a time. Trans people who do not have a GRC are still as a matter of law of the sex with which they were registered at birth; that is, their biological sex. It follows that employers which permit trans people to use facilities provided for the use of the opposite sex on the strength of self-identification are in breach of those regulations. Such breaches can be prosecuted as a criminal offence.
Duties to service clients, service users etc.
The variety of functions performed by the public bodies, charities and private companies appearing on Stonewall’s Diversity Champions list makes it impracticable to do more, here, than give a broad indication of the kinds of legal liabilities that may arise when organisations internalise Stonewall’s values and beliefs (or wishes) about the law. But none of the following scenarios is fanciful:
A swimming pool opens its women-only sessions to trans women on the basis of self-identification. A Muslim woman who had been a regular attender gives up swimming, and sues for indirect discrimination on grounds of sex and/or religion.
A charitable trust set up to fund sports scholarships for women decides that its scholarships are to be open to “anyone who identifies as a woman.” A trans woman wins the qualifying competition for a triathlon scholarship, and is awarded £6,000 a year for the three years of her undergraduate degree. The runner up sues for indirect discrimination on grounds of sex.
A local authority provides care at home, including intimate care, for a severely disabled girl. They have always sent a female carer. They write to the child’s parents to tell them that they have a new carer on their books. Lynette/ David is non-binary, and sometimes attends work as a man, sometimes as a woman. Lynette will from time to time be attending to their daughter, although David won’t. The parents object, saying that they want a female carer, and they do not accept that Lynette/David is female even on Lynette days. The local authority tells the parents that rejecting Lynette is transphobic, and if they insist on doing so the care package will be withdrawn. The parents apply for judicial review of that decision.
A woman attends a health centre for a gynaecological procedure. She has asked to see a female doctor. She sees a doctor who is a trans woman who does not have a GRC. The NHS Trust’s policy is to treat trans women as women for all purposes, and it considers that the doctor’s gender reassignment is a private matter which patients have no right to know about, so the patient is not told that the doctor is a trans woman. She is initially confused by the doctor’s appearance, but too embarrassed to say anything. Part way through the procedure, she becomes convinced that the doctor is physiologically male, but by this point she is frozen with embarrassment and continues to submit to the procedure anyway. She later complains to the police that she has suffered a sexual assault.
An NHS trust that provides mental health services for children and young people operates an “only affirm” policy in relation to young patients presenting with gender dysphoria. A young female patient is referred, manifesting extreme distress and insisting that she is really a boy and she wants hormonal and surgical transition as soon as possible. Clinicians affirm her gender identity without exploring the possibility of other causes for her distress, and put her on puberty blockers and later testosterone. Soon after she turns 18, she undergoes a double mastectomy. The transition fails to relieve her distress. A few years later, she comes to understand that her belief that she was trans was a response to childhood trauma, unexplored at the time. She detransitions and sues the trust for negligence.
A rapist and murderer is convicted and sentenced to a term of imprisonment. He has no medical history of gender dysphoria, although he has been an occasional cross-dresser for some years. After he has been sentenced, he says that he now identifies as female. He doesn’t seek medical treatment, but he does require to be provided with wigs, female clothing, and make-up. He is housed in a women’s prison where he rapes a female inmate. The victim brings judicial review and negligence claims against the prison.
Rugby is played at a mixed school, with separate boys’ and girls’ teams and matches. A 17-year-old trans girl wants to join the girls’ First Fifteen. She plays “tight head prop,” a position in the front row of the scrum. Parents of several girls in the team write to the school to object, saying that they fear for the safety of team-mates and opponents, and drawing the school’s attention to the evidence that was considered by World Rugby in its 2020 process about trans inclusion. The school disagrees, and allows the trans girl to play in a school match between the girls’ First and Second Fifteens. A girl playing opposite the trans girl has her neck broken in a scrum, and dies. The school is prosecuted for corporate manslaughter.
Submitting to Stonewall is capable of leading to a whole world of pain for organisations of any kind, in any sector. The process will absorb endless hours of management time. It is not only time-consuming and tedious; but also – judging anyway from the “rainbow lanyard” antics and patronising feedback to Edinburgh University – considerably humiliating. It costs money. It will make you look silly, gullible and cowardly.
If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics.
But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm.