Case law

Taylor v Jaguar Land Rover: A landmark case, or losing sight of the landmarks of reality?

The case of Taylor v Jaguar Land Rover has been trumpeted as a “landmark”  employment tribunal decision recognising that people who identify as non-binary or gender-fluid can be covered by the Equality Act protected characteristic of “gender reassignment”.  

The case concerns Mr/Ms Taylor, a man who began to wear women’s clothing to work in 2017 as part of a process of exploring his gender. He now identifies as a transwoman. He can be seen here being interviewed by Pink News at the time:

The tribunal seemed particularly keen on inhabiting the role of landmark decision-makers, going into a soliloquy about individuals who make a difference including Rosa Parks, Martin Luther King and Ruth Bader-Ginsberg  (“The Notorious RBG”, as they noted). 

But there is a lot less to the landmark part of the decision than has been promoted. It was already clear that the protected characteristic of “gender reassignment” in the Equality Act is very broad, covering people from the moment they first let it be known they are considering transitioning. Nothing has changed here from a legal point of view.

More interesting are the real-world specifics of what happened. What were the complaints? What did Jaguar Land Rover do? What did the Employment Tribunal think they should have done differently? 

A Rose by Any Other Name…?

Legal questions about trans rights and women’s rights are often articulated as being about competing rights. This is a useful framework. But it sits on top of another one, which is even more fundamental to justice: “the truth, the whole truth and nothing but the truth”.

The Equal Treatment Benchbook, which guides judges’ conduct, says:

It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns.

Equal Treatment Benchbook

But what if following this guidance means the court loses sight of reality itself? 

Taylor was still known by his male name Sean during the course of his employment, and was referred to using male pronouns by colleagues and bosses. He put information about his two identities in the public domain in a media interview in 2017.  Yet the judgment uses female pronouns, throughout including when quoting documents and statements from the time. This makes the whole judgment misleading, and results in nonsensical statements such as

the Claimant had for some years considered herself to be a gay male.


For clarity, this article uses male pronouns and the name that Mr Taylor was using at the time, as it is important to reflect how colleagues and managers would have experienced reality.

What happened

Jaguar Land Rover is a male dominated company.  Women make up 1 in 10 of the workforce. With 50,000 staff in the West Midlands, it is the region’s largest employer. Sean Taylor had worked at Jaguar Land Rover as an engineer for 20 years.  He was based at Gaydon – a complex with some 13,000 staff; the size of a small town. In the building where he worked there were over 1,000 people. 

In March 2017 Taylor told HR that he was transgender and thought himself to be on part of a spectrum, transitioning from the male to the female gender identity. He said he wished to dress in a male style on some days and a female style on others. Over the course of the next year he got some comments and stares. There was also a long-running conversation with local management over toilets. 

The case against Jaguar Land Rover was that in not protecting him from colleagues’ comments, and asking him at one point to use the accessible unisex toilets, they engaged in a course of harrassment and discrimination. 

The harassment

Harassment in the Equality Act is defined as “unwanted conduct related to a relevant protected characteristic, and which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The core of the harassment allegations was around a dozen comments from different people over the course of a year, which Taylor kept a log of in his transition diary. 

The majority of the comments that the tribunal judged to be harassment seem to reflect people trying to acknowledge Taylor’s new appearance. While some of them are awkward, and it is impossible to judge the tone or intent from the words alone, the sentiments mostly appear broadly well-meaning:

  • A male colleague: “In Gaydon today and noticed the great outfit”.
  • A male colleague: “Are you not fem today?” He went on to say that he had trans and lesbian friends and that the Claimant was “very brave”. 
  • A female colleague: “I was checking out your dress, saw it was you and my jaw dropped”.
  • A male colleague: “How do you get around in them? It looks hard work.” [presumably referring to shoes]
  • A female colleague: “It’s nice to see you here in your attire. You have cracking legs”
  • A female colleague: “Don’t take this the wrong way, but I saw you as the top half and it didn’t match the bottom half” followed by an email which said: “(and perhaps I shouldn’t put this in an email), I think you’re beautiful and standing talking with you very much increased that perception” followed by a number of smiley faces .

A couple (involving the same male colleague) were discussion starters on trans politics, which may have been experienced as hurtful:

  • “What do you think of trans versus TERFS? I don’t think trans should use female spaces until they have the op”.
  • The trans community ought to be grateful. Some of their antics have nearly damned near turned me TERF. 

A couple were expressions of surprise by people he passed in open common areas (including at other sites in the region):

  •  “Oh my God!”
  •  “Oh my God. Wow!”

One was hurtful direct banter:

  • A male contractor (on October 31st) “Is this for Halloween?”

One was a hurtful overhead conversation:

  •  Two male colleagues in the toilets – “Have you seen it”? — “I saw ‘it’ in the atrium”. 

One was an inappropriate and intrusive question:

  • A male colleague: “So what’s going on? Are you going to have your bits chopped off?

In addition a lorry driver beeped his horn,  and Taylor felt a male colleague had stared at his legs. 

In another incident a manager laughed at the suggestion that he wear a rainbow lanyard (which was amongst a list of 50 actions for demonstrating allyship Taylor had presented)  – “No more!” remarked the manager,  and said that he had a job to do.

When Taylor complained about these incidents he was asked to give details so that allegations of harassment could be dealt with. He declined to do so. The tribunal called these comments “a sustained course of wholly unacceptable harassment in the workplace” and said that Jaguar Land Rover should have issued a notice highlighting “‘serious concern’ of unacceptable harassment due to protected characteristics”, drawing on its Dignity at Work procedure.

The Dignity at Work procedure highlights “name calling, using very inappropriate names, banter, practical jokes, suggestive comments, abusive language, jokes, posters, assault, insulting behaviour or gestures and circulation of offensive material including the use of email.” While a few of the comments were of this character (calling someone “it” for example) it’s not at all clear that most of them were.

The Employment Tribunal seemed willing to backfill the definition of harassment to cover anything that Taylor found upsetting. But it is hard to see how Jaguar could have communicated this to its thousands of employees  Perhaps they could have put together an edict, possibly with Taylor’s input with examples of unacceptable conduct, but trying to find the right line that would have prevented all such comments would have been difficult. 

The toilets issue 

On 24 May 2017  Taylor met with his manager Mr Poole and made a powerpoint presentation about transitioning. During this meeting Mr Poole said that Taylor should use the disabled toilets.  It’s not clear whether this meant he was being told he should not use the male toilets (but it appears unlikely); more likely, he was being told that he could use the disabled toilets if he did not feel comfortable using the male toilets. 

On 16 June 2017 HR sent advice to Mr Poole, saying: 

The watch outs are toilets, which ones will [Sean] be using, please don’t request that he uses the disabled toilets as this puts us straight in the firing line on the discrimination front. If this becomes his own decision at some point, that’s fine.

On 16 July 2017 Taylor wrote to HR saying he was not sure what the toilet arrangements should be.

On 19 September 2017 Taylor sent an email to a manager, saying: “I don’t know what toilet to use, I raised this three times with no progress over six weeks. I spoke to HR twice about moving as part of the transition at work, but this was ignored.”

On 11 October 2017, in a grievance meeting, Taylor again raised the toilet issue, saying: “I am transgender, and I struggle with what toilet I should use…I understand it is difficult to resolve but I am not having any feedback and who will fix it?”. The response was that HR must make a clear and unambiguous statement quickly. 

27 November 2017 – Transitioning in the Workplace Workshop (Taylor in the Come out for LGBT t-shirt)

Finally, following on from the grievance meeting there were a series of discussions between local management and HR, and it was decided to allow Taylor to use whatever toilets he wanted on any given day:

while the company considers whether a suggestion such as gender-neutral toilets would be appropriate, we feel you should use the toilets you feel comfortable to use each day. We appreciate this will vary from day-to-day. However, if you do not feel comfortable using either the gents or the ladies, then please use the disabled toilets.

The tension between the exception applied to Taylor and the general rules of the company quickly became a  problem.  Taylor complained that the women’s toilets were locked (with a code) in some locations to avoid vandalism, and this caused him stress. He was concerned that trying to gain access to the women’s toilets would involve “difficult conversations with local staff”.

The Tribunal said that allowing Taylor the choice of which facilities to use “put the onus on the Claimant to decide which toilets to use and to deal with any challenges made by colleagues unhappy with the choice”. It said that Jaguar Land Rover should have put in place measures to “prevent her having to deal with challenges over the toilets she was using”. 

The tribunal suggested “putting out a message to inform relevant staff which toilets the Claimant would be using”. This does not seem practical. What were they supposed to do? Put photos of Taylor in all the women’s toilets across the region? And what if women objected when told that a man would be using the women’s toilets?

The other (more sensible) option the tribunal suggested was “designating some sets of toilets gender neutral”. But it stated that using the existing unisex accessible toilets for this purpose was not appropriate: 

Telling a transitioning person to use the disabled toilets is, at the very least, potentially offensive to them because it suggests that their protected characteristic equates to a disability. Secondly, disabled toilets are for disabled people to use and should not be used by other people.

Tribunal judgment

In fact the Equality and Human Rights Commission notes that Gender Dysphoria can be classed as a disability (although in this case Taylor did not have a diagnosis). More broadly, while employers must provide sufficient toilet and washing facilities to allow everyone to use them without unreasonable delay (including workers with a disability) there is no requirement that accessible facilities be strictly restricted to those with a disability. In Croft v Royal Mail, the Court of Appeal had found that unisex accessible facilities can be appropropriate provision for someone who is transitioning. 

Rules and reality, or wishful thinking? 

The employment tribunal was keen on grand gestures – comparing Taylor to Rosa Parks and Martin Luther King, and rewriting history so that the events it considered appear to relate to a woman called Rose, rather than a man called Sean. They refer to Taylor, a man in his 40s, as a “poster girl for LGBT+ rights”. 

They are less keen on the idea of occupational health support for Taylor’s mental health issues, including self-harm and suicidal ideation, saying these were only the symptoms. They diagnose the way Taylor was treated by colleagues as the cause of his distress, apparently without the benefit of any expert evidence.

It is notable that Taylor began the “social transition” to dress in women’s clothing at work without any diagnosis, or medical or psychological support. His mental health seriously deteriorated. A therapist might have been able to better prepare him; helping him to anticipate how colleagues might respond, and supporting him to develop resilience strategies for when those responses did not align with his inner world.

The tribunal’s enthusiasm for playing along with the fantasy meant that it failed to consider the practical dilemma faced by Jaguar Land Rover, namely, where there was a mismatch between Mr Taylor’s self-perception and material reality, what exactly should the company have done to protect him from feeling distress at how others perceived him? What rules should it have communicated to all employees? 

The tribunal was scathing about Jaguar Land Rover’s handling of the situation, saying:

It is fair to say that the Human Resources Team has not functioned properly or provided accurate and professional advice in this case.

Certainly Jaguar fumbled the toilets question by being unwilling to say “no” to a male employee with a strong desire to use the ladies. 

But the tribunal itself tried to close off the practical solution of allowing Taylor to use the disabled toilet where other gender-neutral options were not yet available. Its conclusion does not appear to have any basis in law.

And its suggestions do not engage with the need for clear, fair rules in large organisations. Should all comments related to colleague’s clothing be strictly forbidden? Should anyone be allowed to use any toilet they choose, regardless of their sex? 

Or does the tribunal believe that Jaguar Land Rover should have applied special rules to Mr Taylor? If so, only on the days when he was dressed as in women’s clothes? Or does it believe that Jaguar Land Rover should apply special rules to anyone covered by Section 7 of the Equality Act? If so, how are colleagues supposed to know what these special rules are, and who they apply to?

Answering these dilemmas are serious questions for companies. Jaguar Land Rover should be cautious about letting Stonewall in if it wants to maintain a grasp on reality, and on the rights of all its staff.

Tweet October 2017

Getting the Equality Act wrong

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

Lucy Hunter Blackburn
Kath Murray
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) butany”. 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).

Joanna Cherry QC, MP
Baronness Kishwer Faulkner

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”.

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.


On numbers and rights

Numbers of people who fall under different definitions of “trans” are variously expressed as percentages, ratios and absolute numbers – this can make them hard to compare.

A small number

In the debates leading up to the Gender Recognition Act in 2003 the government estimated that there were around 5,000 transsexual adults in the country (80% male). This estimate, undertaken in conjunction with the lobby group Press for Change, was based on passport office, tax and driving licence records.  5,000 people is a prevalence rate of around 10 in 100,000 adults, which is consistent with other studies.

It was envisaged by those proposing the bill that most of the people applying for a GRC would be those having genital surgery to overcome deep psychological discomfort with their body. As one of the main backers of the Gender Recognition Bill in parliament, Lord Filkin said:

“Such people who do not have surgery are few.”

Lord Filkin, 2003

It is hard to know how many people have had genital surgery, but reasonable estimates are a few hundred a year, a few thousand overall in the UK. There are only 10 surgeons in the UK who can undertake these procedures. In 2010 it was reported that the number of reassignment surgeries carried out that year by the NHS was 143. In 2007 Stephen Whittle estimated that around 300 surgeries take place in the UK a year. This would be in line with the 5,000 estimate.

A much larger number

Stonewall define “trans” as “An umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.”

Cross dressing involving fetishistic transvestism (sexual arousal) has long been observed mainly by heterosexual men, it has much wider prevalence, and can involve hormone treatment to develop breasts. The government tried to draw a bright line between cross dressing and transition. In their policy the government stated:

“Transsexualism is not transvestitism or cross dressing for sexual thrill, psychological comfort or compulsion” 

UK Government, 2003

Since the Gender Recognition Act came into force the political conception of what “trans” means has become much wider.

“it is likely that transsexual people represent only a small proportion of those who might be considered trans”

EHRC – Trans Research Review

In 2011 GIRES estimated that in the adult population up to 1% ”may be experiencing some degree of gender variance“. They estimate that at some stage, about 0.2% of the population may ‘undergo transition’. This was based on a 2009 in a study funded by the Home Office.

In the run up to the consultation on self-identification in 2018 the government said

“we tentatively estimate that there are approximately 200,000–500,000 trans people in the UK. “

UK Government, 2018

As they explain in the GRA consultation document this was based on the estimate of ‘gender variance’ from GIRES. Other studies suggest similar prevalence for people self identifying as transgender.

Up to July 2019 a total of 5,623 GRCs were issued.  The number of people who have received a GRC is in line with the original estimate of the prevalence of transsexuals, and the likely number of people having surgery.

Equal Rights

The much larger group of people who may ‘self ID’ as transgender are likely to be covered by the Equality Act protection against discrimination and harassment.

Organisations and employers, anticipating self-ID, misunderstanding the Equality Act and trained by Stonewall and other ‘trans rights’ organisations have interpreted this as meaning self declared gender identity overwrites sex. In some cases (such as the law society) they explicitly state that cross-dressers can use opposite sex facilities. The NHS states that people should be allocated to “single sex” wards based on their mode of dress not their anatomy, and people who identify as ‘non-binary’ should be free to choose.

The debate around the gender self ID consultation exposed the issue of the larger number of people identifying as trans, the weak official guidance on how the rights of different people interact in single and separate sex spaces, and of organisations jumping the gun on self-ID.

Human rights are universal, and everyone has equal rights (including people who engage in cross dressing for sexual thrill, psychological comfort or compulsion). The right to autonomy and privacy in your personal life does not depend on surgery or on getting a gender recognition certificate. But nor does it overrule other people’s rights to privacy, autonomy and safety.

The key question, on which the government needs to ensure there is clear guidance, is whether being covered by the broad protection of Section 7 of the Equality Act gives someone the right to use single sex services provided for the opposite sex.

I think the answer is no – service providers can have unambiguous rules based on sex in order to provide single and separate sex services.

Service providers and employers should take reasonable steps to ensure that people with the broad a protected characteristic of “transsexual” are not discriminated against in general (for example by providing a unisex or ‘gender neutral’ alternatives where possible if facilities are sex segregated).

In most cases a service provider will not know whether someone who wishes to use opposite sex facilities (or at least avoid same-sex facilities) is in the tiny group of people who may have surgery or have obtained a GRC, or the far more numerous group who do not. A few people ‘pass’ as members of the opposite sex, but many don’t (and rarely in adulthood without extensive cosmetic surgery and hormones).

Workable rules to protect everybody’s rights cannot depend on the test of ‘passing’. Clear policies and signage about which services and spaces are single sex and which are for either sex can meet the equal rights of everyone, without undermining anyone’s privacy.

[Sources and calculations here]


A good question and a clear answer

This week Shadow Secretary of State for Women and Equalities Marsha de Cordova asked a good question about the single sex exceptions in the Equality Act.

Equalities Minister Kemi Badenoch gave a good and clear answer.

Providers have the right to restrict the use of spaces on the basis of sex, and exclude transgender people with or without a GRC if this is justified.

Kemi Badenoch, Equalities Minister, 2020

It is worth reflecting that she talked about “restricting the use of spaces” on the basis of sex.

How do you do this? A service provider sets a rule which applies to the space, based on sex: male or female only. And they communicate it.

Usually they do this with a simple pictogram like this:

This picture is not just a commonly understood cultural image, it is standardised internationally as part of ISO Standard 7001 . It explicitly means female facilities.

What does “if this is justified” mean? The Equality Act 2010 sets out common justifications for providing single sex services, including for reasons of ordinary, everyday bodily privacy and dignity.

Circumstances where a person of one sex might reasonably object to the presence of a person of the opposite sex

Equality Act 2010 – Schedule 3, Paragraph 27 (6)

In order to provide a single-sex service you need to have clear rules. As the Minister’s wording makes clear the rules apply to the space, not to each individual differently.

It is not possible to negotiate on a case-by-case basis to allow some into female only spaces, on the basis of their desire, their self-identification, their clothing and make-up, a diagnosis they might or might not have, hormones they might be taking, surgery they might have now or in the future, or a certificate which allows them to change their birth certificate.

None of that is relevant. A person of the opposite sex may still object.

The law is clear about clear rules

While there is very little case law about single sex services, there are relevant judgements about clear rules which come from cases on age discrimination. In particular Homer v West Yorkshire Police and Seldon v Clarkson Wright and Jakes (both concern whether rules about retirement age can be justified discrimination).

The judgment in Homer confirms that it is the fairness of a rule or policy which must be assessed, not its application to each individual person on a case-by-case basis.

Any exception has to be made for everyone who is adversely affected by the rule.

It considers the question of proportionality:

A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate.

Is it disproportionate to have a clear policy that all members of one sex are excluded in order to provide members of the opposite sex with privacy, security and clarity?

Clearly not. A space is either single sex or mixed sex. The need for a clear rules justifies the clarity of the rule.

In the case of Seldon the judges recognised that “the avoidance of unseemly debates about capacity (of individual people at retirement age) is capable of being a legitimate aim.”

Similarly the avoidance of unseemly debates in toilets, changing rooms, showers, dormitories and other places where people undress seems very clearly a legitimate aim.

Kemi Badenoch did not promise any action by the government or the EHRC on clarifying this for service providers. But the Ministry of Housing, Communities & Local Government yesterday announced a Technical review on increasing accessibility and provision of toilets for men and women.

The announcement says:

The review will also look at signage, which should be clearer and use sex-specific language, to avoid confusion.

This is good news (and the consultation is open until January 29th, I am sure lots of women’s groups will provide inputs).

CQC Stories

Trans healthcare professionals and patient consent

In services where sex matters, there are real practical conflicts between the interests of people who wish to be treated as if they are the opposite sex, and the rights, interests and safeguarding of others. This requires careful and grown up policies, not just a celebration of diversity, backed up by good intentions and hope.

Your relationship with medical practitioners is one of these situations.

Patients are vulnerable people, and doctors and healthcare systems have power. The revelation of decades of abuse of patients by Jimmy Savile across dozens of NHS hospitals led to to intensive investigations, and safeguarding improvements across the healthcare system. So too have cases of doctors sexually abusing patients. And there have also been challenges to routine practices, which previously ignored consent, such as medical students practising intimate examinations on anaesthetised female patients.

Healthcare providers now have rafts of policies to protect patients and ensure their informed consent. Then there is the Care Quality Commission whose job is to inspects hospitals, GPs surgeries and social care services asking; are they safe? Are they effective? Are they caring? Are they responsive to people’s needs, and are they well led?

It is a basic matter of consent that patients can choose to be seen (at least for primary care) by a doctor or nurse of a particular sex. No justification is needed, but obvious reasons include feeling more comfortable, religious codes of modesty or a history of abuse or trauma. Intimate examinations in particular can be embarrassing or distressing, and it is common that girls and women prefer to be seen by a female healthcare professional for these procedures.

It should go without saying, but when someone is putting their fingers inside your vagina, consent matters.

The General Medical Council in its ethical guidance tells doctors:

You must treat patients as individuals and respect their dignity and privacy

You must treat patients fairly and with respect whatever their life choices and beliefs

NHS policy is that patients can choose to see a male or female General Practitioner. The GMC advises that chaperones should also be routinely offered, whatever the sex of patient or practitioners. The chaperone’s main responsibility is to provide a safeguard for both parties and to act as a witness to continuing consent. Hospital policies generally state that chaperones should be of the same sex as the patient (unless the patient prefers otherwise).

A clinic which goes against a patient’s request for a GP of a particular sex, or that pressurises them to decline to have chaperone is not respecting consent. Systematically putting emotional pressure on patients to submit to this would be institutional abuse.

How do policies for medical staff transitioning deal with patient consent and preference over the sex of the person examining them?

There is no national approach to transitioning at work in the NHS, but regional trusts often have policies (For example these ones from West Suffolk, Cambridgeshire and Peterborough, Brighton and Sussex). The NHS trust policies are all slightly different but cover similar “acceptance without exception” ground, following the recommendations of organisations like GIRES. I have not been able to find one which considers how accommodating the desire of some health care professionals to be treated as a member of the opposite sex at all times interacts with the rights of patients. This is a policy blindspot.

The British Medical Association recently passed a motion in support of legal self-ID, calling for trans healthcare workers to be are “able to access facilities appropriate to the gender they identify as” and “ensure trans people are able to access gendered space.” (by “gendered spaces” they mean single sex spaces — spaces where other people do not expect or consent to share with members of the opposite sex). They do not mention how they would deal with the interaction between healthcare workers self ID and patients’ rights, dignity and consent in relation to choosing and knowing the sex of those examining them.

When a male GP ‘becomes a woman’

The Guardian last week ran a story “Meet the trans key workers treating, teaching and serving the UK” which featured a transgender GP, Dr Kamaruddin. Dr Kamruddin is a GP partner at the East One practice in East London.

Dr Kamaruddin has written and been interviewed about transitioning at work as a GP in British Journal of General Practice, Transgender Living (2017), a three-part series in Malaysians in Medicine (2020), Newsweek (2020). The Royal College of General Practitioners gave Kamaruddin an “Inspire award” for member of the year in 2019.

Dr Kamaruddin’s celebrated story illustrates the risk to patients’ dignity, privacy and respect for their beliefs if their are no policies to protect them, and the fact that there are no policies.

Dr Kamaruddin is one of four GP partners at the East One Practice. GP Partners invest financial capital as co-owners and have large degree of control. They make hiring decisions and decide how things are organised and run. The practice’s patients are amongst the most deprived fifth of the population of England, with a large Bangladeshi muslim population, many speaking English as a second language.

At the age of 53, after being a partner at the practice for 15 years Dr Kamil Kamruddin decided to transition to live as a woman. Dr Kamaruddin recounts announcing the decision to the other three partners and their joint employees during a regular monthly practice meeting,

My colleagues and staff welcomed the news without much surprise. They voiced their support and even gave a round of applause.

When the other partners and staff raised the question of how to explain this to patients Kamruddin said:

I told them that I would tell them myself, I wanted to carry that burden.

In the Newsweek article: Kamaruddin describes the first day coming to work in the new identity of Kamilla “with a big smile and a bright dress”, having had facial surgery, a hair transplant and other non-specified surgery.

Kamaruddin called it “a satisfying experience”. The GP recounts compliments and congratulations and fantastical cases of mistaken identity “One of my colleagues did not recognise me at first, thinking I was a female locum GP. But it was my patients who took me by surprise the most. No one was hostile towards me. Some thought I was the wife of Dr Kamaruddin, me, their doctor, and a lot of them thought that I was a new GP. “

In the end, my staff did not have to field any awkward questions or hand out any leaflets.

Kamruddin is out and proud (and celebrated with awards and prizes) as a trans woman in public life, but on East One’s website the family doctor is now listed simply as “female”.

As well as the celebrated lack of leaflets and “awkward” questions in person, the practice’s website does not offer any information to patients who want to understand what “transgender” means or how they can clearly and simply ask for a female doctor .

Nor does it include any information about the chaperone policy.

Kamaruddin says new patients “did not ask any questions at all because they either thought I was a female GP or it did not bother them at all that I was a transgender doctor.”

This account raises questions:

  • Is it appropriate for an individual doctor to announce a plan to transition at an all-staff meeting rather than to first work out with appropriate safeguarding and other leads, a plan which considers how to inform patients and secure their dignity, privacy and consent when being examined?
  • Is it appropriate for the transitioning person to decide unilaterally that they alone will be the one to explain their transition to patients? Is that an appropriate plan?
  • If patients are given no leaflets and did not asked “awkward questions” how can the surgery be sure that patients are giving their informed consent for accepting a male doctor when they have asked for a female doctor (for example do they understand that transition does not necessarily involve genital surgery? )
  • How are the rights and interests of patients secured by a policy and information system that will now book them an appointment with a male doctor when they have specifically requested a female?

Can anyone ask these questions without being called a transphobe? And if not who is protecting patients’ interests?

Intimate examinations without a chaperone as a show of acceptance

New Urine Test Could Make Pap Smears a Thing of the Past

Again and again, across different platforms Dr Kamaruddin discusses female patients, mainly Muslim women, allowing intimate examinations without a chaperone, as a positive experience validating the doctor’s new identity.

After my transition, they even allowed me to perform more intimate examinations that they did not let me to do when I was a male GP.

“Every single one of them refused my offer of a chaperone even when they knew that I am transgender. “

In a feature in Malysian Medics International Kamruddin says “I had a fear that my patients would treat me differently as they might not agree with my new identity due to prejudice and ignorance. … Surprisingly, my patients were adorable; some thought I was a new female locum GP, few male patients were flirting with me, and almost all were happy for me when they got to know I was the same person”.

Again this raises questions:

  • Is it appropriate for a medical practice to see the role of staff and patients as being to validate a doctor’s gender identity with complements, unquestioning acceptance and a letting down of personal sexual and religious boundaries?
  • Were these patients really empowered to say ‘no’ if they did not wish to be seen by intimately examined by the doctor — if this view is seen as hostile, prejudiced and ignorant ?
  • Were these patients really empowered to say they wanted to have chaperone, when the person offering the choice sees it as highly personal to the healthcare worker, and celebrates if the patient decline a chaperone, as a sign of positive affirmation?
  • Did the surgery consider the fact that “every single one”, amongst a population described as conservative muslim women turned down the offer of a chaperone for intimate examinations as a sign that the measures they have in place free and informed consent might not have been effective? Was this monitored?

In none of the laudatory articles can I find anyone questioning what systems and policies Dr Kamruddin and partners at East One put in place to ensure that patients’ interests are respected.

Ultimately these are not questions about just this one particular GP’s practice, but about the policies and professional guidance across the healthcare system. Deference, fear or confusion should never be mistaken for consent.

In 2017 the NHS apologised to a woman for sending a transexual nurse who was obviously male to undertake a smear test. In 2020 would the BMA, the GMC and the Royal College of GPs argue that such a woman should be viewed as hostile, prejudiced and ignorant ?

Should the woman be encouraged, pressured or forced to submit?

If not, what policies do healthcare providers have to prevent this happening?

The Care Quality Commission did not see any risk here

The Care Quality Commission inspects GP’s surgeries to check they are safe, effective, caring, responsive to people’s needs, and well led. What does the case of Dr Kamaruddin show about how they consider these questions when health care professional wants to be treated as the opposite sex?

CQC assessments, are detailed, getting down to the level of looking at how mops are stored. Sometimes they are criticised for box-ticking paperwork. Nonetheless you would think that the questions I have asked above might have been be raised by inspectors concerned with risk in order to sign off on statements such as this:

People who use the service were protected from the risk of abuse, because the provider had taken reasonable steps to identify the possibility of abuse and prevent abuse from happening


If you can’t envisage the possibility of a risk (or you can but you are not allowed to speak about it) then you cannot begin to talk about what reasonable steps could be taken.

In their 2014 report on the East One practice (when Kamruddin was still listed as male) the CQC gives an amber “improvements needed” rating, highlighting that staff do not always treat people with consideration and respect, and that records of DBS checks were lacking. The report also notes that they had heard “sometimes it is very difficult to make an appointment with a female doctor.” The inspectors note that the practice “had a chaperone service available for people wishing to have someone of the same gender present during examinations” and that this is important for respecting patients dignity.

The next inspection was in 2016 (after Kamil became Kamilla ) the CQC did not see any need to ask any particular questions on how this transition was managed in relation to patient consent and dignity. Nor do they clarify the distinction between sex and gender identity.

The inspectors finds that there are still improvements needed, in particular on the role and training of chaperones. The report notes that there are notices advising patients that chaperones are available, but does not comment on uptake (data which should be recorded). The report gives no sign that the inspectors wondered whether female patients (including conservative religious women, with english as a second language) are really acting with free and informed consent in turning down a chaperone for an intimate examination by a doctor they have known for 15 years as a man, or wonder whether they were under emotional pressure to do so.

Nor does it mention in the section under leadership (which also required improvement) whether the potential for consent and safeguarding risks raised from having a male doctor being treated as if they were female had been considered as part of the clinics risk management.

In their 2017 report the inspectors say blandly “Staff we spoke with on the day of the inspection were aware of their responsibilities when chaperoning.” and “Patients could be treated by a clinician of the same gender”. Again they do not ask the question about how female patients feel about being told Dr Kamaruddin is the same “gender” as them (and that sex is irrelevant).

The word “sex” does not appear once in any of these three CQC reports.

The Care Quality Commission does not see sex

Does the CQC, the agency with responsiblity for assessing the adequacy of safeguarding in healthcare really not see sex as a relevant factor in safeguarding and for treating patients with kindness, dignity and respect?

It seems not.

Their equality statement on their website ignores the Equality Act protected characteristic of sex (and replaces “gender reassignment” with gender identity or expression).

The East One practice also fails to mention sex in its equal opportunity policy.

Of course like so many other public bodies the CQC is a member of the Stonewall Champions scheme. Its management at the highest level has set an objective to gain a higher placement on Stonewall Index (the equality strategy mentions Stonewall three times. The words female and sex do not appear once).

The regulator, whose job includes protecting the dignity and agency of female patients to be seen by a female doctor when they ask for one, has made itself answerable to Stonewall; a charity that views women’s boundaries as bigotry.

Across the healthcare service doctors, managers and inspectors are being told to mentally replace sex with “gender identity” at all times. This creates a loophole in their ability to identify inappropriate behaviour and abuse of power which relate to sex.

Lessons learned?

When the the reports detailing how Jimmy Savile had been enabled to abuse patients in the NHS’s care came out in 2014 the government, regulators and healthcare provers all promised to learn the painfully obvious lessons.

The reports showed again and again how things had been allowed to happen which should have been seen as obviously inappropriate, when safeguarding loopholes met the desires of an unusually flamboyant character.

Inexplicably, Savile was allowed to watch female patients as they stripped naked for bathing.

Jeremy Hunt, then Secretary of State for Health

In 2015 Kate Lampard wrote an independent report commissioned by the government, drawing together lessons learnt from the 44 NHS trusts. The Lampard report highlighted the unusualness of Savile but also the everyday vulnerability of bureaucracies:

Much of the story of Savile and his associations with NHS hospitals is unusual to the point of being scarcely credible. It concerns a famous, flamboyantly eccentric, narcissistic and manipulative television personality using his celebrity profile and his much-publicised volunteering and fundraising roles to gain access, influence and power in certain hospitals.

Savile’s celebrity and his roles as a volunteer and fundraiser also gave him power and influence within NHS hospitals which meant that his behaviour, which was often evidently inappropriate, was not challenged as it should have been. Savile’s ability to continue to pursue his activities without effective challenge was aided by fragmented hospital management arrangements; social attitudes of the times, including reticence in reporting and accepting reports of sexual harassment and abuse, and greater deference than today towards those in positions of influence and power; and less bold and intrusive media reporting.

Kate Lampard

While the ink was barely drying on the Lampard report government, regulators, healthcare providers and the media have been busy adopting guidelines and language which replicate this pattern of deference and reticence to speak up when evidently inappropriate things are happening.

Getting the Equality Act wrong

The authority that regulates security in pubs and clubs says “who needs rules?” when it comes to women’s privacy

Single sex services are about rules. Ambiguity about whether someone has permission to be in a space where someone else is undressing is a recipe for trouble. With clear rules everyone can be treated with respect and kept safe. 

Rules and policies provide three levels of protection:

  1. People are more likely to comply without intervention if rules are clear, avoiding disputes and antagonism. 
  2. If there is a dispute or a difficult situation, applying a clear policy allows everyone to be treated with dignity. Policies can consider in advance how to deal with sensitive situations, in order to  avoid argument, upset and uncertainty .
  3. Clear rules and policies are critical for effective training of frontline staff to ensure that they are equipped to treat people fairly and with dignity, avoid putting themselves in compromised positions where they might be accused of harassment or assault, and are protected from assault or harassment themselves. 

In 2018 the Women and Equality Select Committee undertook a inquiry into sexual harassment of women and girls in public places. It found that it is widespread, particularly in the “nighttime economy”.  The Committee recommended that licensed premises should be required to have a policy to respond to and eliminate sexual harassment.

Allowing women and girls privacy when going to the toilet, washing and changing is a basic protection against sexual harassment and for keeping order (and it is something most venue owners, and frontline staff understand well).

The  government did not agree that a new statutory requirement was required but said it would work closely with bodies such as the Security Industry Authority (SIA) to improve safeguarding. The SIA is the organisation responsible for regulating the private security industry: security guards, and door staff. They report to the Home Secretary.

“ Government and the SIA are both keen for the SIA to continue to play a key role in supporting wider safeguarding aims and raising awareness across the private security sector. With many thousands of licensed private security staff in regulated roles (i.e. door supervisors and security teams at clubs and bars), through SIA’s national licensing and mandatory training requirements private security operatives can contribute significantly to keeping keep women safe in the night time economy and preventing sexual harassment.”

Government response to the Inquiry on Sexual Harassment of Women and Girls in Public Places

I can find no further information about any action SIA have taken to improve safeguarding against sexual harassment on its website. Instead in 2018 they published an extraordinary four page guidance document “Trans customers: A guide for door supervisors”. Its advice contributes to making women less safe, and prevents security staff doing their job. 

The guidance (which has recently been analysed by employment barrister Naomi Cunningham at Legal Feminist and on Twitter by @NoXYinXXprisons) says that security staff should allow customers, of either sex and whatever they look like to choose which toilets to use. It suggests that telling a male person that they cannot use the ladies is harassment, saying workers themselves may be held personally liable for it, and suggesting that actions may even be a hate crime. 

In effect this guidance says ‘who needs rules?’ and seeks to frighten security staff away from enforcing them. It tells the very trusted people that women and girls should be able to turn to if they are surprised, frightened or upset by a man in the women’s toilets not to act to protect their dignity, privacy, safety and inclusion. It tells venues they cannot communicate clear sex-based policies or expect staff to enforce them, and it tells training providers that it cannot train staff on how to deal sensitively with people with gender dysphoria while maintaining single sex spaces. This is the exact opposite of what the regulator tasked with helping people feel secure should be doing. 

The SIA guidance points to the Equality Act 2010, but it is a mishmash of misinformation. Venues, like all service providers are covered by the Equality Act 2010 which requires that they do not discriminate based on sex in providing a service, apart from where this is objectively justified. Providing toilets which give unambiguous privacy to both men and women is both justified and necessary. Building regulations and local authority licencing also make specific requirements to provide toilets for men and women. 

The Equality Act says is that it is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment, but it this does not mean that people with this characteristic have the right to use single sex spaces for the opposite sex. What the Equality Act requires is that the venue considers whether additional provision or rules are needed to accommodate people who may be disadvantaged by a sex-based rule, not that they must allow anyone who wants to to break the rules. 

No one should be harassed or abused for being transgender or gender non-conforming. But nor should women be sexually harassed by forcing them to go to the toilet or undress with males watching,  listening or potentially taking sexual or other enjoyment from their discomfort and humiliation. 

Communicating and enforcing single sex spaces requires clear and sensitive policies and training for frontline staff (this can also help to prevent mistakes, and ensure staff treat everyone sensitively and with dignity).

What is not needed is an “anything goes” attitude that removes all protection. 

SIA’s inability to recognise the importance of clarity over single sex spaces may perhaps be traced to an overall confusion about the Equality Act. Their recently published “Standards of Behaviour for Security Operatives” fails to mention sex discrimination at all, instead substituting “gender”. 

The Women and Equality Select Committee  inquiry into sexual harassment of women and girls in public places also heard from the Equality and Human Rights Commission. The EHRC said their focus was on sexual harassment in the workplace and argued they have  limited opportunities for enforcement action in relation to the harassment of women and girls in public spaces, particularly in relation to private businesses and voluntary sector organisations.

The Committee disagreed with this “not our problem, guv” attitude. It said:

“We believe that the Commission is wrongly interpreting its powers in relation to sexual harassment of women and girls in public places and should take a wider view of its role in addressing this issue. The prohibition on sexual harassment in the Equality Act 2010 applies to clubs, bars, shops and other private service providers and the EHRC can enforce this.”

Inquiry into Sexual Harassment of Women and Girls in Public Places

It is very much in the EHRC’s powers to take enforcement action against organisations that do not provide basic privacy for women and girls in toilets, showers and changing rooms. Furthermore, when organisations are driven to do this by misinterpretation of the Equality Act itself it is absolutely the EHRC’s job to clear up this misunderstanding. Its failure to do this makes it complicit in  institutionalising sexual harassment and discrimination against women and girls.  

The first recommendation of the Women and Equality Select Committee Inquiry on Sexual Harassment of Women and Girls in Public Places was that EHRC should set out a plan of action for working with other regulators to ensure that the prevalence and impact of sexual harassment in public places, and the effectiveness of actions being taken to eliminate it, are transparent

The Government’s response was that the EHRC would respond to this recommendation. 

As far as I can see the EHRC never did. 

Ann Sinnott is taking the EHRC and the Government Equalities Office to judicial review over their misleading guidance on the Equality Act and single sex services – you can support the case here.

Case law

Croft v Royal Mail: between a rock and a hard place

They say “hard cases make bad law“. What little case law there is about single sex spaces and transgender people’s access to them falls into that category. 

Croft v Royal Mail was an employment case which considered the issue of toilets and changing rooms. It went to the Employment Appeal Tribunal and then to the Court of Appeal in 2003. The outcome is not popular with anyone, since it does not give a clear answer either way. 

It says that 

“acquiring the status of a transsexual does not carry with it the right to choose which toilets to use” 

Lord Justice Pill, Court of Appeal

But it it also suggests that employers can not solve the issue by simply offering a unisex alternative. The Court of Appeal  said that at some point a male person should be considered transitioned enough to gain access to women’s facilities, even if they had not ‘changed sex’, but it would not say what that point was. 

The Court of Appeal: Lord Justices Pill, Parker and Keene

The case concerned a Royal Mail employee Nicolas Simpson, who later changed name to Nicki Simpson and then Sarah Croft while working  as a van driver at the depot in Leicester. 

Simpson, a father of three, and long-time cross dresser, had worked at the depot for 10 years before being diagnosed with gender dysphoria in 1997 and deciding to transition. 

After a meeting with local managers in August 1998 when a ‘low key’ approach to transition was agreed, Simpson began to attend work “dressed as a woman” (as the tribunal describes it) and requested the use of the name Nicki. Management supported this by briefing colleagues about Simpson’s transition, and about their harassment policy. They offered Simpson use of the unisex disabled toilets “for the time being”. Regional management advised that Royal Mail were prepared to offer access to the  female toilet facilities at an unspecified time in the future saying

“we have to consider two main issues, your own views and preferences, but also the views and preferences of our female employees”

Royal Mail

By January 1999 Simpson (now Sarah Croft) was frustrated that some members of staff were saying “he, him and mate” and argued that having to use the unisex facility was an obstacle to gaining social acceptance.  After four months of sick leave with depression and a several month stand-off with regional management,  in June 1999 Croft left the Royal Mail and filed a claim for constructive dismissal, sex discrimination, and being unduly pressured into consenting to the giving of confidential medical information.

The tribunal found in favour of Royal Mail; that Croft had not been dismissed, that Royal Mail had taken reasonable steps to prevent sex discrimination by staff, and that asking for medical information when an employee is requesting a change or exception to ordinary practice was  reasonable.

This was upheld by the EAT and the Court of Appeal.

But while the Employment Tribunal and Employment Appeal Tribunal tried to draw a clear line at surgery, saying that someone who remained fully anatomically male had no claim on using the women’s facilities, the Court of Appeal reached its conclusion by a different route. It said that people transitioning are not immediately entitled to be treated as members of the opposite sex, but “a permanent refusal of choice to someone presenting to the world as a woman could be an act of discrimination even if the person had not undergone the final surgical intervention.” Nevertheless they said, in this case the employer acted reasonably in providing an “admirably practical solution to what the respondent rightly recognised, and rightly treated, as a delicate issue requiring a low-key and sensitive approach.”

Some things to note about the Croft case:

Female employees expecting privacy were not considered transphobic by Royal Mail or the courts 

The EAT judgment references the views of female employees in several places. It says that the Royal Mail managers had taken a “low key” approach because  in another part of the country there had been a “proposed walk-out by other staff in a similar situation.” The tribunal mentions that a number of female employees had expressed concern to their union representative about use of the female facilities. It describes the sink-and-mirror area linked to the toilet which Croft first proposed to use, as being a space which female employees often used  for changing clothes. “Informal soundings of the staff had indicated that female staff would not be happy with the applicant, who they had known as a man for many years, using their  facility.“ The Tribunal added: “The respondents do have a number of female employees from ethnic minorities, who had specific objections to sharing facilities with the applicant, who they had known as a man and who was still anatomically male.”

The tribunal noted that it is counterintuitive to find that a person who is anatomically male must be treated, for toileting purposes, as female, saying “a voyeur or transvestite might do that.“ 

Croft predates the GRA, but change of legal sex does not solve the problems it raises

The Court of Appeal found that Croft was a man “wishing to become female”, but had not yet reached that point, nevertheless it said the request to use female facilities should be considered.

The judges were watching the Goodwin case in the European Court of Human Rights  which was ongoing at the same time and clearly hoped that a change in UK law would solve the problem of determining the moment and criteria for legal sex change. (A later judgment R (Green) v Secretary of State for Justice [2013] is influenced by Croft, and says that a male person remains male “until there is a Gender Recognition Certificate” )

But the GRA does not solve the problem that female employees may still object to showering, changing and sharing toilet facilities with someone they rightly perceive to be male, whatever their gender identity or legal status. This issue ( the “Helen Staniland question”) is also reflected on by the EAT:.

“it seems to us inherently improbable that the terms “men” and “women”  [in workplace regulations] should then be referring to the gender a person might choose for himself or herself as that interpretation would require contemplation of the shower rooms… to be separate, nonetheless possibly having amongst their users, in the women’s facilities, persons still wholly anatomically male and, in the men’s, persons surgically adapted as far as possible to resemble females.”

The case highlights the impossibility of managers using sensitive medical information to judge whether someone can use opposite-sex facilities on a case-by-case basis

Relations between Croft and local managers deteriorated over fumbled requests for medical information,  illustrating the difficulty of knowing what information is legitimate to ask for, and what can be done with it.  Management essentially wanted to know whether Croft had or was intending to have genital surgery, wrongly predicting this was the dividing line for legal sex change. Feeling  this was too sensitive to enquire about directly they asked for consent for the company’s occupational health service to contact Croft’s doctor, saying that any information would be confidential. Croft objected to this, apparently believing that detailed full medical records were being asked for. 

Royal Mail emphasised that access to the  female facilities had to wait for “a suitable period of communication and consultation with the workforce.”  But it is impossible to see how this consultation could have worked; it appeared to be based on an expectation that surgery would provide the assurance needed for female depot staff to feel comfortable, but it would have been inappropriate to share any  information about Croft’s medical treatment with female staff, and nor would it be appropriate for either Croft or female colleagues to strike up personal conversations about genitalia (this could be sexual harassment). 

The courts in 2002 assumed this issue would be vanishingly rare

The Royal Mail said they knew of only 4 other cases of transsexualism out of their 160,000 employees, a rate of .0025%. The EAT said:

“As an employer the Post Office was required to deal with a problem of exceptional rarity, one to which its Human Resource Department and legal advisers would have struggled to find parallels and authoritative guidance. It had to steer between the Scylla of not paying due respect to one employee’s wishes, without intrusive enquiry into deeply personal matters, and the Charybdis of not respecting the wishes of other employees, wishes not, as it seems to us, fairly describable as prejudiced but rather being a manifestation of widely-held views as to a certain form of privacy or propriety. “

Scylla and Charybdis: between a rock and a hard place

The EAT addressed this dilemma assuming that there would be a tiny number of trans people in the population, all undergoing surgical transition, and that most would ultimately succeed in passing indistinguishably as the opposite sex. They said “In the massively preponderant number of cases the employer will have no reason to distinguish between sex and gender” and that “ there will be a tiny proportion where a person “presents” as of one sex but is known by the employer to be of the other.“ 

What they didn’t anticipate was the expansion of the “transgender umbrella” to include the much larger number of cross-dressing males, or the exponential growth in the number of children believing they are born in the wrong body, such that most schools are now facing children demanding to use opposite-sex facilities. 

The Equal Opportunity Commission – arguing against women’s interests

Croft was represented by the Equal Opportunities Commission – the forerunner to the Equality and Human Rights Commission,  with a specific mandate for combatting sex discrimination. 

The case argued by the EOC team was already (pre GRA) for self identified gender to replace sex, saying “anatomical or biological sex was of no concern to the employer. The employer’s only concern was with social gender…biological sex should remain private and there was no need for the employer to be informed of it.”

The Tribunal referred to the “repeated and lengthy attack on Mr Jones (the Royal Mail’s personnel manager for the Midlands)  at the hearing by Dinah Rose QC, counsel for the applicant, who tried, they held, to portray him not only as ignorant of transsexuality but as phobic towards transsexuals. The Tribunal’s finding was:

“In successfully withstanding that battering Mr Jones satisfied us fully that he was doing his best to resolve a difficult situation both for the applicant and the rest of the workforce. Although motivation and inferences are not really a relevant issue in this case, none of the points put forward to us by Miss Rose lead us to believe that there were anti-transsexual feelings in Mr Jones or in other people at a management level in the respondent, although they undoubtedly saw the applicant’s transition as a problem.”

The legitimate unwillingness of female staff to undress with a male colleague was something that managers of the post office depot in Leicester could see clearly, but which the equality professionals would not. 


Leading questions from the EHRC

“We need clear conversations and proper debate about what the law and policy actually mean in practice, and what would be the practical effect of any changes – dialogue must be constructive, tolerant and based on the facts. This includes challenging prejudices, calling out abusive behaviour and being open about the rights and needs of everyone involved.”

Rebecca Hillsenrath, CEO, EHRC

The Equality Act 2010 provides protection against discrimination for people who have the protected characteristic “gender reassignment” (broadly: being transgender), such as in the workplace, in housing, transport and other services.

It was never intended that this general protection should mean people gain the right to access to single sex services for the opposite sex, such as males having access to specialist services for women, and their children, who have been the victim of sexual and domestic violence.

The need for women’s refuges, rape crisis centres and counselling services to be female-only is not only so that women can be safe, but so that they can feel safe, and be centred and supported in their own recovery.

As Karen Ingala Smith, Director of the charity nia writes, part of the role of these services is to help women to learn to trust themselves again:

“Women are gas-lighted (manipulated to question their own judgement or even sanity) by their abusive male partners all the time. It is a cornerstone of coercive control. As a service provider you are in a position of power, no matter how you try to balance this out, and of course we do as much as possible to balance this out, but ultimately it is inescapable. You are not offering a trauma informed environment if you, in your position of power, gaslight traumatised women and pretend that someone that you both really know is a man, is actually a woman.  It is furthering the abuse to then expect women to share what you say is women-only space with males who say that they are women, because you and they know are not.”

Karen Ingala-Smith, Director, nia

The Equality and Human Rights Commission’s role is to promote the implementation of the Equality Act 2010. They are in a position of power and responsiblity. They should be standing behind service providers explaining that the law allows for single sex services, which means that males, whatever they wear, and however they identify, can be told politely and clearly “no” (and may need to be able to access alternative provision).

If they wanted to know what female victim-survivors think why not instead ask service users themselves ?

Instead EHRC commissioned general population survey research from the National Centre for Social Research which they published a report on yesterday.

The survey showed that most people in the UK say they are not prejudiced against transgender people and they think prejudice is wrong.

This would seem like good news.

But the EHRC is concerned that fewer, and falling numbers of people think that this means that males who identify as women should be allowed into women’s refuges.

Attitudes to “transgender women” using a refuge for women
experiencing domestic violence, 2016-2019

The EHRC’s think it is not positive, inclusive, or supportive. It is possibly even transphobic:

“Although it is clear that we are progressing towards being a more inclusive and understanding society, these findings show that when probed, people were found to be less supportive of trans people in specific situations….The vast majority of British people believe transphobia is wrong. We need to understand some of the shifts, though, such as the slight reduction in support for access by trans people to some services.”

Rebecca Hilsenrath, CEO, Equality and Human Rights Commission

Nancy Kelley of Stonewall (who lead the research for this study in her previous role at the National Centre for Social Research) is clear that people who say no to males in women’s refuges are wrong. She calls the survey results “a worrying downward trend” driven by “extreme anti-trans view”.

Leading questions

It is very clear what the EHRC, NatCen and Stonewall thought should be the right answer in this survey. The survey design guides people towards it.

Lets walk through the survey.

First it asks people to agree to a very broad definition of transgender:

“People who are transgender have gone through all or part of a process (including thoughts or actions) to change the sex they were described as at birth to the gender they identify with, or intend to. This might include by changing their name, wearing different clothes, taking hormones or having gender reassignment surgery.”

Natcen/EHRC definition of transgender, as used in the survey

Those who have been paying attention to the sex-and-gender debates will recognise this as an articulation of the broad definition of the protected characteristic gender reassignment from the Equality Act 2010 s.7. People who meet this definition should not be discriminated against or harassed because of it, but it does not mean that someone has changed sex.

Those who haven’t been paying attention (i.e. most people answering the survey) will find this definition completely incomprehensible — how can you change a sex to a gender? What kind of surgery are they talking about? Are they really saying “wearing different clothes” changes something fundamental about a person?

These are all perplexing and embarrassing questions, and the interviewer doesn’t have the answer. Just click ‘1’ and move on.

Next the interviewer asks them:

Thinking about the reasons why transgender people have gone
through this process, please tell me whether you agree or disagree
with the following statement “Most people who are transgender have gone through this process because of a very superficial and temporary need?

Natcen survey question

How on earth can this question be answered meaningfully? “This process” as previously defined can range from thinking about changing clothing style to having surgery. Surely the motivations across such a wide range of people will differ? And anyway on what basis can the person on the doorstep know about the psychological state of strangers?

Still it has to be answered (only 24% of people declined to), and people have probably half forgotten the broad criteria they’ve just agreed to, so the person constructs their own ad-hoc idea of a meaningful transition and gives an answer.

Next they are asked would you describe yourself as as very prejudiced against people who are transgender, a little prejudiced, or, not prejudiced at all? Of course, most people answer not prejudiced.

Then a question on toilets and then the question on women’s refuges. Both these questions define a “transgender woman” like this:

“A transgender woman: A man who has gone through all or part of a process to become a woman.”

Definition of “transgender woman” used by Natcen/EHRC in their survey.

This definition says that a man “becomes a woman” as soon as they undertake any part of the vaguely defined process of thinking about or actually “changing their name, wearing different clothes, taking hormones or having reassignment surgery.”

The person-on-the-doorstep may not spot this.

They are being asked about a “transgender woman”; so they think about someone who is, in some sense, a woman. Perhaps they imagine that there is some official criteria involved. It surely can’t mean a man who has decided to wear different clothes?

But they have already probably agreed that the process (whatever it is) does not reflect “a very superficial and temporary need” and declared themself not to be prejudiced, so it would be rude to ask questions at this point in answering what is anyway only a hypothetical question in an hour long survey.

So 51% of them say yes they feel comfortable that a “woman” who is transgender (under the very broad definition which includes someone who looks absolutely like any other man) should be allowed into a woman’s refuge.

EHRC commissioned these questions.

EHRC know that sex is a protected characteristic in the Equality Act.

EHRC knows that a man who goes through all or part of the process which is defined under the protected characteristic gender reassignment does not become a woman. Legally they remain a man.

EHRC’s whose one job is to promote the Equality Act 2010, to protect everyone’s rights has used their power, resources and legitimacy to try to manipulate public opinion to pressure and label victims of male violence who want a female-only environment as transphobic. This is not the basis for a constructive, tolerant, pragmatic discussions. This is abuse.


Getting to clarity on single sex services

“We think there should be guidance providing more clarity on how single-sex services should work in practice to make sure the law is understood by service users and service providers without ambiguity”

Rebecca Hilsenrath, Chief Executive, Equality and Human Rights Commission

Everyone agrees that clear guidance is needed on the law on single and separate sex services. The government is soon to announce what it will do to bring that much needed clarity

Yesterday in the final days before this announcement is expected Rebecca Hilsenrath, CEO of the Equality and Human Rights Commission made a statement, YouGov released polling data and the House of Commons Library published a research briefing.

Do they help us get to clarity?

EHRC: inventing “special circumstances”

Hilsenrath’s statement recognises the need for unambiguous guidance. This is something EHRC could have provided but has refused to.

But she goes further in the wrong direction introducing the ambiguous idea of “special circumstances” as a requirement for excluding transgender people from services for the opposite sex:

” the special circumstances set out in the 2010 Act, which allow organisations to treat trans people differently, do not hinge on whether the trans person has a GRC or not”

In fact the Equality Act does not mention “special circumstances” for excluding male people from female-only services (and vice versa).

The protected characteristic of “gender reassignment” in the Equality Act 2010 is very broad. It treats someone as trans if they are so much as “proposing to undergo” a process of personal transition. This does not have to involve any medical treatment at all.

As Vera Baird, then Solicitor General, stated in 2009 when the bill that became the Equality Act was being debated.

“There are a lot of ways in which that can be manifested for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away.”

Vera Baird, Solicitor General

Discrimination protection related to the characteristic “gender reassignment” is not a sliding scale. A person’s transition might involve things such as clothes, makeup and hairstyle, ‘feminine’ or ‘masculine’ behaviours. It could involve hormones, facial surgery, mastectomy or false breasts, and for a minority, genital surgery, but it does not have to. A person is protected straight away on proposing to transition, and does not get more protection against discrimination by taking more of these steps, or achieving a more convincing likeness with the opposite sex. These are things that they might to do feel ‘right’ in themselves but rights in relation to others cannot be given or taken away based on personal grooming, cosmetic surgery or the performance of sex stereotypes.

Furthermore, as the EHRC highlights in their Code of Practice people who start the gender reassignment process but then decide to stop also have the protected characteristic of gender reassignment.

In this sense, s.7 of the Equality Act operates even more broadly than self-ID – any man who says he intends to live as a woman is covered (and vice versa), and that coverage is forever, whatever they look like and whether they do or don’t consider themselves transitioned. The reason for this is that this protection is intended to be general (you should not lose your job for intending to transition, transitioning or detransitioning for example).

Section 7’s broad definition of ‘gender reassignment’ is not an access pass for spaces provided for the privacy or needs of members of the opposite sex.

It should be obvious that no “special circumstances” are needed to exclude a man who says he intends to “live as a woman” from communal services provided for the privacy, dignity or particular needs of women. If on Tuesday Colin declares Colin’s intention to transition it is as inappropriate to be in the women’s showers as it was on Monday. If Colin’s changes name to Cilla and pronouns to she/her and declares this a complete transition, this is fully valid on Cilla’s part. But still it does not confer the right to share intimate spaces with members of the opposite sex without their consent, and no “special circumstances” need be invoked to ask Cilla to respect other people’s privacy.

This is not a question of treating someone with the protected characteristic “gender reassignment” differently, but treating them the same as others (who also do not have the right to access services provided for members of the opposite sex).

Providing unisex options in addition to single/separate sex meets the needs of anyone at any stage of a personal transition who may not wish to share with members of their own sex.

The survey says: less than 50% of people agree that transgender people should be able to use services for the opposite sex, and even fewer if it is understood this is without surgery

The YouGov poll found that fewer than 50% of people in the UK think that trans people should be able to use changing rooms of the opposite sex. This number drops, and is overtaken by people who say absolutely not, when the question specifies that the person has not had genital surgery.

Coloured ticks are nice YouGov, but the data would be better – NB: pale coloured green ticks mean “fewer than 50%” agree with this.

Legally, whether someone has had genital surgery or not does not determine their transgender status (either under the Equality Act or the Gender Recognition Act) . And in practice it would be inappropriate to ask. In a situation (such as a hospital or a workplace) where the organisation is in a position to know whether a person has had surgery it would be inappropriate for them to share this information with other users of a single sex space.

Clear and unambiguous guidance cannot tell service providers or users that access is offered on the basis of gender reassignment surgery, clothing or appearance.

House of Commons research: Skipping over the single sex exceptions altogether

It is late in the day of this debate for the House of Commons Library to be publishing basic research. And stunningly its new research briefing on Gender recognition and the rights of transgender people. gets the Equality Act wrong.

In setting out the legal basis for single sex services it skips straight over the single and separate sex exceptions themselves (Schedule 3 paragraphs 26 and 27 of the Equality Act 2010) and goes straight to paragraph 28 which focuses on “gender reassignment discrimination” in services.

It is paragraphs 26 and 27 of Schedule 3 the Equality Act which set out reasons why it may be a proportionate means of achieving a legitimate aim to provide single and separate sex services (including for everyday bodily privacy: in circumstances where it is reasonable for one person to object to the presence of a person of the opposite sex).

As explained above (and by discrimination lawyer Audrey Ludwig ) having the protected characteristic “gender reassignment” does not mean that a person loses the protected characteristic of sex. And if someone does not have a Gender Recognition Certificate, then unambiguously their legal sex is the same as it was the day they were born.

It is paragraphs 26 and 27 and their exceptions to the rules on sex discrimination which enables single and separate sex services (i.e. sex based rules) where they are justified.

The House of Commons briefing seems to be searching for the “special circumstances” argument and it zeroes in on the explanatory notes to paragraph 28 which state that:

In a group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

Presumably this example in the guidance relates to a male-to-female transsexual person with a GRC (i.e. legally female), since a transsexual person without a GRC would be excluded on the basis of their sex (i.e. under paragraph 26, not 28).

Having skipped over what the actual law says about single and separate sex services, the House of Commons briefing further muddies the waters by saying that unnamed ‘legal commentators’ have “expressed concern” that this portion of the explanatory notes “overstates the exception” and argue “that the proportionality test imposes stricter requirements”:

It would be inadequate for a provider of services to assume female victims of sexual assault would necessarily object to a trans-woman attending group counselling sessions. A degree of canvassing of opinion would surely be required

This is an argument that has been advanced by legal commentator Alex Sharpe (who also ignores paragraphs 26 and 27).

The inappropriateness (and inhumanity) of the idea that women who have been raped should first have to answer questions about whether they are willing to to welcome a male person into a women-only counselling session (and potentially be shamed and called a bigot if they don’t), before they themselves can access help themselves should be obvious.

Furthermore there are no details about any individual male person who identifies as a woman which could be shared in this “canvasing” process; they may or may not have had surgery, they may appear unambiguously male, they may have been living ‘as a man’ until the day before. All of these details would be inappropriate to disclose, and none of them affect the protected characteristic of “gender reassignment”.

The clear and unambiguous guidance which the government and the EHRC recognises is needed has two options: either it must state that all males with the protected characteristic of gender reassignment have the right to use women-only services (as Stonewall, Gendered Intelligence, Mermaids and legal commentators urge them to do) or none of them do.

There is no other clear and unambiguous guidance on rights that is possible.

Males who wish to use share intimate spaces with women without their consent may prefer ambiguity and reference to unworkable “special circumstances”. But women and girl’s ability to wash, undress (and yes, use the toilet) in privacy, as well as to access specialist women-only services including refuges, hostels and prisons must mean the ability of institutions to unambiguously and clearly say “no” to males, including those that are members of other vulnerable and minority groups.

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A mum’s story about single sex spaces in school

This guest post is by @SistaRealista on twitter (it was originally a twitter thread and is reposted here with her permission).

This is a story from personal experience about the need for single-sex exemptions under law for certain spaces, and why Self-ID trans ideology can be problematic.

It’s about ‘Colin’, a 16 year old boy, my 15 year old daughter J, and the girls’ changing room at their school.

Locker room | School lockers, High school lockers, Locker room
A school gym changing room

Colin joined J’s school last year to redo year 10 (ages 14-15). He left his last school for mental health reasons & had time out. Being 16 he was year older than rest of class. He made friends but would get upset & say no one liked him (untrue) He still struggled with his mental health. One day Colin (16) wore a skirt to school. He told J & classmates he wasn’t trans, he wore it simply because he wanted to. J told him she was proud of him. He got a few looks that first day but everyone let him be. Him wearing a skirt became a regular occurrence. All good.

A few weeks later, Colin told school & classmates that on the days he wore a skirt, he would be ‘Chloe’ and everyone was to call them that and use she/her. But on days when he wore trousers, everyone should call him Colin and he/him. All at school agreed.

Then Colin came out as both trans AND non-binary (on Instagram first, obviously, with his pronouns, which were… all of them). He said he had appointment with a clinic, wanted hormones & would have gender reassignment surgery when 18. He said even when transitioned he’d still be Colin some days.

J (15) is a lesbian and very accepting of trans people. But even she was confused as to how Colin could be both trans AND non-binary. She told me it didn’t make logical and that “I think it’s all gone too far now”. I impressed myself with great restraint by simply saying “hmm”.

So far since saying he was trans, Colin/Chloe been allowed to change for PE in the staff toilets as C wasn’t comfortable doing so in boys’. A good compromise. He started doing PE with the girls. Then he told J and some other girls that he wanted to start changing with them.

Girls told Colin they’d be uncomfortable having him in their changing room. He was attracted to girls & had recently asked a few out (all said no). Colin: but you have bisexual & lesbian girls in the changing room. Girls: That’s completely different. Colin: no it’s not.

During this time, Colin said something ‘jokingly’ to J about them liking each other. J (15) is a lesbian & autistic. J: but I only like girls. Colin: but I am a girl. J told me she thought “but you’re not”. She didn’t want to hurt C’s feelings so said she liked someone else.

J told me “the thing is, Colin/Chloe is quite masculine looking” & she had “no interest in being with anyone who has a penis”. But she felt bad. Bless her little woke heart, she was conflicted ‘cos she thought of herself as a trans ally but wasn’t buying what C was saying.

Days after Colin first asked girls if they’d mind him changing with them, he pressed the issue.

He waved the Equality Act in their faces (literally), saying the law said he could use girls changing room as was trans girl, so school was letting him & girls had to accept it.

The girls tried reasoning with Colin. They told him he already had his own space to change for PE, away from boys. He said he “felt left out” changing by himself. J said the Equality Act must make some allowances for situations like theirs. C said it didn’t. (Incorrectly.)

J said to Colin/Chloe: but as you’re still attracted to girls, what happens if you get aroused when you see us undressed and get an erection? Colin: don’t worry, I’m very good at hiding it. Which, as I later told the headteacher, was really reassuring to hear

Face with raised eyebrow

The girls came home from school v anxious & distressed. My daughter J & few other girls have ASD and/or anxiety. Colin was a year older than them all. He said he knew the law and his dad’s a lawyer so the girls believed him. They wanted to support C and felt bad saying no.

This is where I & few other mothers stepped in.

We reassured our daughters that no, The Equality Act didn’t give Colin legal right to use the girls changing room after 2 weeks of being trans. We spoke to school who held special meeting to tell girls no way was it happening.

School spoke firmly to Colin and his parents and he addressed it with therapist. To his credit he sent J a sincere apology. He said he’d got carried away, had thought his problems would disappear if he became Chloe, & very wrongly hadn’t taken girls’ feelings into account.

Two weeks later, Colin was back to being Colin full-time. Still wore the odd skirt but had decided he was not trans but non gender conforming. I’m cross he bullied the girls but he was picked up on that and stopped. He was confused & unhappy kid trying to find himself. Most teens are at times.

I’m telling this to show, contrary to what many say, the single-sex exemptions are necessary to protect the privacy of girls let alone women. The ‘click & collect trans kit’ as advertised on social media can be harmful for young vulnerable minds seeking easy answer to the question “who am I”. One of the important things here I think is that NO ONE had a problem with Colin being trans. He was supported by school, friends and home & accommodated – until he wanted to prioritise his need to ‘be in the room’ over others’ legal rights & comfort.