Losing sight of the law

Last year independent researchers, Kath Murray, Lucy Hunter Blackburn and Lisa McKenzie wrote a paper on policy capture:  Losing sight of women’s rights, published in Scotland’s leading journal on current affairs by Edinburgh University Press.

It charts how public policy has shifted away from the law to  allow people to ‘self identify’ as members of the opposite sex, and the impact of this on women’s rights. They provide case studies from Scotland in relation to the census and prisons as examples of “unregulated roll-out of gender self-identification”. 

They argue that this is contrary to the law:

the Equality Act does not provide that those with the characteristic of gender reassignment have a general right of access to single-sex spaces and services based on gender self-identification, despite a common and influential assumption that it does.

Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie

The Equality Act covers the whole United Kingdom, so these debates have wider applicability than Scotland.

Edinburgh University Professor Sharon Cowan, together with Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines disagree with this analysis and have responded in their own Scottish Affairs article this week. They say: 

“we aim to correct some of the erroneous statements made by Murray et al about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010.”

Sharon Cowan, Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines

This is an influential group. Cowan is was until recently Deputy Head of the Law School. Kenny is Senior Lecturer in Gender and Politics and a member of the steering group of the cross-party Women5050 campaign for legal gender quotas in Scotland. 

Their criticism of Murray, Blackburn and MacKenzie is extraordinarily harsh, not simply disagreeing with them but accusing them of a “lack of rigour in their scholarship” which they say “results in an argument wanting in accuracy and balance”. Harry Josephine Giles has previously called the paper a “poorly-sourced conspiracy theory masquerading as an academic case study”.

Murray, Blackburn and Mackenzie have responded, painstakingly going through the accusations. The battle of warring footnotes is well worth reading, and goes into the substantive issues and questions in more detail than I can in a blog post.

I want to draw out one point in particular: Cowan et al’s explanation of why they believe that the Equality Act gives people the right to self-identity into opposite sex services. Their paper is perhaps the most fully articulated statement of this by legal scholars and has already been praised by others in the field who argue similarly such as Alex Sharpe and Peter Dunne. 

As Murray Blackburn and Mackenzie note: 

The position they represent has, until very recently, been asserted rather than explained, making serious scrutiny by legal specialists difficult.

Murray, Blackburn, MacKenzie

Single and separate sex services are commonplace but the exceptions in the Equality Act are “rarely used”?

Cowan et al’s paper reveals that their interpretation rests on an extraordinary view that the single and separate sex services exceptions in the Equality can only rarely be applied, in the narrowest of circumstances. 

It is hard to reconcile this with the everyday reality that separate and single sex facilities are routinely provided in schools, colleges, gyms, shopping centres, pubs, clubs, public conveniences, hospitals and care settings, workplaces and leisure facilities in every city, town,and village in the country, and are included in regulations covering workplaces, buildings, schools and licensed premises. 

The critical paragraphs from Cowan et al’s article are reproduced below [My emphasis added]

Under Schedule 3 paragraphs 26 and 27, the exceptions relating to sex discrimination in the provision of separate services and single sex services are even narrower. The service provider must again show that providing separate or single-sex services is a proportionate means of achieving a legitimate aim. But under paragraph 26, in providing separate services for the sexes, they also have to show that providing joint services would be less effective. Further, according to paragraph 26 (2) (the provision of separate services differently), the service provider must show that it is not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex. And under paragraph 27 (single-sex services), the service provider also has to meet all of the conditions set out under sub-paragraphs 2-7. Thus, the provisions of the 2010 Act set in place stringent criteria that must be met in order for a service provider to exclude anyone (either on the basis of gender reassignment or sex) from separate or single-sex services.

This is a bizarre interpretation of the Equality Act. 

How the exceptions really work

The Equality Act makes it generally unlawful to discriminate against people on the basis of a protected characteristic. For example signs like this are unlawful.

However signs like this are lawful and in everyday use: 

Similarly there are many occasions when organisations discriminate lawfully on the  basis of other protected characteristics:

Exceptions are not exceptional

The Equality Act recognises that there are many everyday situations where discrimination is justified (the word ‘exception’ appears 137 times in the Act). The fact that they are called exceptions does not mean that they can only be applied in extremely rare circumstances or on an individual case-by-case basis. Rather it allows clear rules which are an exception to the general prohibition of discrimination.

Cowan et al, inexplicably, seem to believe that organisations around the country are wantonly putting up signs and policies which restrict service or employment to “men only” or  “women only” without relying on specific Equality Act exceptions against sex discrimination.

In fact the Equality Act sets out routine and ordinary circumstances where it is legitimate to provide services (or restrict associated employment) to either sex. A common reason is  “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex” (i.e. for bodily privacy).

Cowan et al argue that the test of whether providing separate/single-sex services meets the Equality Act’s requirement of being “a proportionate means of achieving a legitimate aim” is a high bar that is rarely met. 

This again is a bizarre interpretation. Workplace, buildings and school regulations require the provision of toilets, washing facilities and changing rooms separately for the two sexes. Similarly, local authority licensing regulations also require restaurants, pubs and other venues to provide separate male and female toilets. Meeting these basic regulatory requirements is, in itself,  surely a “legitimate aim”.

Law professors misreading the Equality Act

Cowan et al go on to make the jaw dropping claim that in order to provide a single sex service the service provider “has to meet all of the conditions set out under sub-paragraphs 2-7” of paragraph 27”

Sharon Cowan, Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines (2020) argue that in order to provide a single sex service ALL of these conditions need to be met simultaneously   (2) Only persons of that sex have need of the service. (3) There is joint provision for both sexes but that is not sufficient on its own (4) If the service were provided for men and women jointly, it would not be as effective and it is not reasonably practicable to provide separate services for each sex (5)They are provided in a hospital or other place where users need special attention (6)They may be used by more than one person and a woman might object to the presence of a man (or vice versa) (7) They may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex.

This would mean that single sex services could only be provided in the logically impossible situation where the service is only needed by people of one sex (2) and also the service is provided jointly for both sexes (3).

The examples in the notes to the Equality Act mention a womans refuge (4) department store changing rooms (6)  and a female massage therapist operating in her clients’ homes (7). Cowan et al’s interpretation suggest that to be provided on a single sex basis these services must be being offered inside a hospital (5).

In fact, as Murray, Blackburn and MacKenzie point out  the law doesn’t say “all” at all here  (Schedule 3 paragraph 27 1 a) but “any”. Which makes much more sense. 

The big question: does Section 7 change someone’s sex?

In addition to arguing that paragraphs 26 and 27 can almost never be applied (despite the fact that single and separate sex services are commonplace), Cowan et al say that they definitely cannot be applied to exclude someone on the basis of sex if the person identifies as transgender and thus come under Section 7 of the Equality Act (the wide definition of gender reassignment). Rather, they say paragraph 28 must be used. They say (without any justification) that the conditions for this are also extremely narrow. 

They conclude:

Paragraphs 26 and 27 of Schedule 3 of the Act deal with sex discrimination exceptions, and paragraph 28 deals with gender reassignment exceptions. The default position, therefore, is that you cannot discriminate.

Cowan et al

This is a fundamental misunderstanding of the single and separate sex exceptions.

In fact one of the authors Harry Josephine Giles recently gave a more conventional interpretation (on twitter):

If you’re legally male, you can be excluded from single sex spaces by default. If you’re legally female, you can be excluded if you also have the protected characteristic of gender reassignment (i.e. are trans) and it’s proportionate and legitimate to do so.

Harry Josephine Giles

Under the Equality Act 2010 the default is that you cannot discriminate. Most parts of public life are mixed sex, so your sex doesn’t matter. But you can discriminate based on sex where sex matters such as in single sex toilets, showers, dormitories, changing rooms, hospital wards women’s refuges, prisons, sports and so on (otherwise how else could you provide them?) 

Notably the only case law related to sex and gender reassignment discrimination that the legal scholars reference is Brook v Tasker 2014 (a case from a lower court in which no legal arguments were heard or reasons recorded). They don’t discuss the higher court cases of Croft v Royal Mail or Green v Secretary of State.  They rely heavily on the EHRC Code of Practice for service providers but dispute the EHRC’s more recent statement from 2018 clarifying that the protected characteristic of Gender Reassignment (section 7) does not change a person’s sex (as confirmed in both Croft and Green).

Avoiding the question

Last week Professor Sharon Cowan could be seen presenting at a webinar hosted by the Scottish gender equality charity Engender alongside Lynn Welsh, the head of legal for EHRC Scotland and Nicole Busby who wrote a report on this question for Engender.

Cowan argued that “the law in this area is sometimes a bit slow to catch up” and argued for a flexible approach and a “dynamic legal framework”.

Given Cowan et al’s blistering criticism  of Murray, Blackburn and Mackenzie over their agreement with EHRC you would have thought this would be an opportunity for the Professor to similarly take the regulator’s Head of Legal to task, but Professor Cowan did not mention this issue.

At the end of the webinar, a set of audience questions were put to the panel, including one that pointed to this area of dispute between the Professor and the regulator: “does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”

Nicole Busby who wrote a report on this for Engender skipped that question.

Lynn Welsh of the EHRC said she hadn’t heard it:

  “… my apologies, I have scribbled it down but not properly”

Alys Mumford, Engender’s communications and engagement manager helpfully repeated it.

“The question is: does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”

Welsh had nowhere to go but to reply:

No. Is the short answer…..gender reassignment would be a characteristic that you held along with sex, and disability, or religion or age 

Lynn Welsh, EHRC Scotland

She didn’t expand on what this means in practice in relation to the  claims made in the rest of the webinar that the Equality Act allows people to self ID into opposite sex services.

Emma went back to Professor Cowan who said

“I don’t know what happened but I didn’t hear question two either,  but happy that Lynn spoke to that…. but section 7….I didn’t catch it….. you cut out slightly Emma here.”

Emma from Engender let the most interesting question drop. 

Asked what would she change about the Equality Act, Cowan called for “gender” to be added to the protected characteristic of sex.

Not letting the question drop

Earlier this week SNP MP Joanna Cherry got a chance to question the  incoming Chair of the EHRC, Baroness Kishwer Falkner.  She raised the question of policy capture (aka the law being “a bit slow to catch up” with what influential activists would like us to believe it says).

Cherry asked “You see human rights and equality as intertwined. Do you agree that it is important that we look at each of the protected characteristics as equal and deserving of enforcement?”

Baroness Falkner replied “There has never been a hierarchy of rights – the reason they have not been given hierarchy is because they are equal”

After a general discussion of conflicting rights Cherry raised the specifics “there is a heated debate in the public sphere between those with the protected characteristic of gender reassignment and those with the protected characteristic of sex, in relation to single sex spaces. Is it the duty of  EHRC to approach all cases with a fair balance of interests rather than framing one over the other?”

Baroness Falkner said  “as a principle  absolutely right, but specificities would depend on the policy framework and  the strategic aims of the particular case”

Cherry pressed on “Doesn’t it come down to what the Equality Act says? What the law is?”

Baroness Falkner said “Yes indeed it does, that is why I referred to policy.”

Joanna Cherry (who has obviously read Murray, Blackburn and Mackenzie’s excellent paper on policy capture) said 

Would you agree with me that all guidance issued by EHRC  should be grounded in statute and case law, and that sometimes policy can be removed from statute and case law? What underpins the EHRC should be the Equality Act and the Human Rights Act?

Joanna Cherry QC, MP

“Yes” said the incoming head of the EHRC ” I agree”.

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Postscript: Do read Murray, Blackburn and Mackenzie‘s response to Cowan et al. It is long but worth your time.

They include in Section 6 a shocking but all too familiar account of what happened after they submitted the paper for publication; a member of staff at the university press complained, describing it as transphobic, and comparable with anti-Semitic, homophobic, Islamophobic and sexist opinion, putting its publication into months of uncertainty. Although the journal stood fast, Lisa MacKenzie was placed under investigation at work (in an unrelated job). When they presented the paper at a University of Edinburgh event, the event itself was characterised as transphobic and hateful on social media in posts shared by university members, including two of the co-authors of the response paper.

The work that Lucy, Kath and Lisa do is invaluable, and the extent of their bravery and integrity in standing up to establishment voices seeking to shut them down and smear their reputation at every turn can not be overstated. Their work is not funded by any university, foundation or public entity – they are running a crowdfunder here for the next projects they want to work on to expose policy capture and defend women’s rights.