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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

CQC

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.

Categories
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.

Categories
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. 

Categories
Uncategorized

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.

Categories
Uncategorized

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.

Categories
Stories Uncategorized

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.

Categories
Getting the Equality Act wrong

Aleardo Zanghellini

Aleardo Zanghellini is a Professor of Law and Social Theory at Reading University. He recently published an article in the Sage Open Journal on Philosophical Problems With the Gender-Critical Feminist Argument Against Trans Inclusion.

He does not define what he means by “trans inclusion”. But over the course of the article it becomes clear he does not mean general inclusion in employment, housing, healthcare, or in public life. Specifically he means inclusion of people who identify as trans in single sex services provided for members of the opposite sex: ““[t]oilets, changing rooms, girls’ youth organisations, hostels, and prisons” and so on.

The article is largely an extended diatribe targeting the public philosophy of Professor Kathleen Stock. Zanghelli also criticises ‘gender critical’ thinkers in general for publishing primarily on sites such as The Conversation and Medium. These platforms he says “offer us both the opportunity and the temptation to cut (academic) corners in becoming “influencers,” unlike traditional peer review processes, which are designed to make influence and recognition a by-product of, and contingent on, genuine communicative action.”

What is a law professor doing writing an article on philosophy? This kind of sideways move can also be a short cut to getting a peer reviewed article, where the content wouldn’t stand up to peer review in your own discipline.

Luckily someone else has done a sterling job of picking apart the specious philosophical arguments: the hasty conclusions, misplaced burden of proof, faulty comparison, double standards, and ad hominem arguments.

I just want to highlight one thing. Professor Zanghellini gets the central point about the law wrong.

Zanghelli says:

” trans people already have a right to access gender-segregated spaces congruent with their gender identity, regardless of their gender presentation, and regardless of whether or not they are in possession of a gender recognition certificate.”

Aleardo Zanghellini

Just to be clear what Zanghellini is claiming here – whatever someone looks like, and regardless of whether they have had any diagnosis, treatment or surgery; if they say their gender identity is aligned with the opposite sex they have the right to access single sex spaces – like toilets, showers, changing rooms and dormitories shared with members of the opposite sex.

He says this the the combined effect of sections 7 and 29 of the Equality Act 2010.

Section 7 is the part of the Equality Act which defines the protected characteristic “gender reassignment”:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

Equality Act 2010, Section 7

The definition of “gender reassignment” in the Act is necessarily broad (because a person shouldn’t lose their job because they intend to transition etc..)

Section 29 is the part of the Act about discrimination by service providers. It basically says that it is unlawful to discriminate against or harass a person because of a protected characteristic.

Zanghellini says these two sections combine to mean that male people with the protected characteristic ‘gender reassignment’ have the right to use services for women.

This is nonsense. Section 29 means service providers should not generally exclude people from services because of factors such as age, race, disability, sex or gender reassignment.

Single sex services are a specific legal exceptions to section 29, where service providers are allowed to discriminate based on sex . Oddly enough Zanghelli does not reference the parts of the legislation which allow for single sex service (the main place is Schedule 3 paragraphs 26 and 27 ).

Section 29 also combines with other definitions such as age (S.5), disability (S.6) and race (S.9). None of this means that men with these protected characteristics have the right to access single or seperate sex spaces for women as provided for by Sch 3 p 26 & 27 (as it would according to Zanghellini’s logic)

Where does the law professor get the idea that the Equality Act gives men the right to self-identify into spaces where women and girls are undressing?

He only gives one reference in his paper to support the legal part of the analysis – that is to an article in The Conversation by Professor Alex Sharpe.

Sharpe also gets an acknowledgment for reviewing Zanghellini’s article, and gave it the thumbs up on Twitter.

Perhaps Zanghellini should take his own advice on quality and robustness in academic publishing and get out of his social media bubble?

Here are two papers I recommend that are worth reading:

Komorowski, J. 2020. Sex and the Equality Act, Journal of the Law Society of Scotland, Volume 65, Issue 1.

Murray, K and Blackburn, LH. 2019. Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland, Scottish Affairs, Volume 28, Issue 3.

And one more, Whitfield, L. 2016. How Legislation Protects Women Only Spaces and Services: an overview.

Categories
Case law

Revisiting the Brook case

There is very little case law about single and separate sex services and gender identity. Only one case has been litigated since the Equality Act 2010 was enacted.

In 2014 Halifax County Court awarded £1,500 in damages to S Brook, who was refused access to the women’s toilets of a pub and then barred after complaining.

The case is what is known as a “first instance”, which means it wasn’t appealed and did not create a legal precedent (legal precedents mean that court must follow decisions of previous decisions of the same or higher court in cases that are similar in relation to the facts and the legal issues). * some updated information on this at the bottom of the post (1/6/20)

No transcript of the judgment by Judge Miller is available. Nevertheless it has been reported as a “landmark case” and has been influential. It is leaned on heavily by those who argue that self-declared “gender identity” gives someone the right to access to single sex changing rooms, showers, toilets, hospital wards, dormitories and so on shared with members of the opposite sex.

The site of the landmark case

For example, the Government Equalities Office’s 2015 guide “providing services for transgender customers” produced together with the lobby group Gendered Intelligence cites the case in support of its statement that it would be direct discrimination to “refuse to allow a woman [sic] to use female facilities because staff perceive her to be male.”

The Women and Equality Select Committee report on Transgender Equality saw the case as a demonstration of the “gender reassignment exception” (Schedule 3, paragraph 28), suggesting it cannot be relied on in a case such as pub toilets. The 2018 UK Government Consultation on reform of the Gender Recognition Act cites the case in support of saying that “refusing a transwoman with or without a GRC access to a female toilet in a pub is likely to be unlawful.” This same statement is repeated in a House of Commons briefing paper in January 2020.

However these statements conflict with a straightforward interpretation of sex and the Equality Act; single sex services for women do not have to admit men, and male people who self identify as women remain legally men.

As trans rights activist Dr Harry Josephine recently reflected in an analysis of the law and single sex services:

So, if you’re legally male, you can be excluded from single sex spaces by default. 

Dr Harry Josephine

The Green case

The problem with the Brook case for advocates of “trans inclusive single sex spaces”, is that it disagrees with the judgment in Green v Secretary of State for Justice 2013 (which went to the High Court and thus did create a precedent).

The Green case involved a transwoman prisoner (convicted as Craig Hudson for his part in the torture and murder of his wife and of perverting the course of justice). It wasn’t about single sex services as Green was held in a men’s prison but the question of whether Green, who had a male appearance and genitalia was discriminated against by being denied tights, a wig, prosthetic breasts and vaginas (the prison governor argued that these items are a security risk), as well as difficulty in obtaining other items such as concealer make-up, sanitary towels, hair removal products and outsize women’s shoes and clothing.

The judgment is relevant because it considered whether in a “gender reassignment” discrimination case the appropriate comparator was a person of the same sex or the opposite sex. Comparators are frequently used in discrimination cases as a means to test whether a person was treated less favourably than a similar person without the same protected characteristic. Judge Richardson found in the case of Green that the appropriate comparator was a man who was not transitioning/transitioned:

“He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.”

HHJ Richardson

As Law Professor Alex Sharpe notes in a recent Modern Law Review article, that finding puts a major spanner in the works for any self identifying transwomen who wish to claim discrimination from being excluded from women’s services:

Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women-only bathroom or domestic violence refuge, her experience would be compared to that of a non-trans man. Obviously, and even applying the ‘proportionality’ test, a non-trans man would have been excluded. The conclusion that must follow is that there has been no discrimination.

Alex Sharpe

In the Brook or on the Green?

So why did the judgment in Brook differ from the judgement in Green?

Alex Sharpe says the reason is that high court judge Jeremy Richardson “must be wrong” (because Sharpe is sure that parliament’s intention in the Equality Act was to allow males to self identify into female spaces). Sharpe says (citing the unrecorded Brook judgment from the lower court) “it seems unlikely that Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did.”

Harry Josephine joins in the wishful thinking, but also has some more information on the Brook case:

“I have confirmed personally with the lawyers who brought the [Brook] suit that the question of whether or not the woman had a GRC never came up in court. So the judge in Brook 2014 did not consider that the judgement in Green 2013 applied to the case. Interesting! You don’t need a GRC to claim gender reassignment discrimination after all. Perhaps Green 2013 indeed doesn’t apply beyond prison after all.

Harry Josephine

Clare McCann, a barrister who specialises in transgender equality said something similar about the case in a legal opinion to the Women and Equality Select Committee in 2015. She notes that “it did not appear that the defendant pub owner sought to rely on paragraph 28, Schedule 3, of EqA” (which allows gender reassignment discrimination in relation to single sex services). Her theory is that:

Perhaps this was because it was so unlikely that providing separate toilets for men and women and not allowing the trans female customer to use the ladies toilets was a proportionate means of achieving a legitimate aim.

Clare McCann

This she admits is speculation.

Both Sharpe and Josephine are personally, philosophically and professionally invested in the idea that “trans women are women” and that males who identify as women have a right to use women’s services. McCann similarly takes a one sided view about the inclusion of males in women’s spaces, for example writing an article on toilets and gender identity in 2017 which did not mention the impact on women at all.

Since everyone else is speculating on what happened in the Brook case, allow me too to speculate.

But first lets look at what we know about the case.

What happened in the Halifax pub?

The only public record of the case is a 2014 press release from the Kirklees law centre. It says Susan Brook” has lived as a woman for over 20 years and has undergone gender re-assignment surgery.”

The incident happened in July 2012 when Brook attended the New Inn pub in Halifax. Brook went to the ladies toilets “but was followed in by another lady who told her that she should not use the ladies toilets.”

Brook spoke to the landlord of the pub “but he refused to assist. He later barred her from the pub and confirmed that she should not use the ladies toilets and must use the gentleman’s toilets.”

Brook has written a short article which gives more context on Brook’s life.

S Brook, 2016

Rather than living for 20 years “as a woman” the article describes many years as a part time cross dresser before Brook “told my GP I would like to change gender in mid 2009”, and had “my operation” in November 2012, followed by breast augmentation in February 2014. The pub incident happened in July 2012.

Up to, and after these operations, Brook’s life story as told in the article is marked by long periods of unemployment, personal conflict, alcohol problems and mental health issues.

My face didn’t fit [in the Royal Air Force] and I was given all the worst jobs, extra duties and ceremonial duties. I found that no matter how hard I tried whatever I did was never right and this led to me being charged on numerous occasions and 2 short prison terms.

I had also begun to drink to the excess during this time which brought more trouble and eventually hospitalisation for rehabilitation purposes.

Having been discharged from the air force I was divorced in early 1991 and moved to Ovenden where I lived for a short period before losing my flat, I was also fired from my job as a security guard at Websters brewery when I notified my employer I intended to undergo gender reassignment.

I was finally offered a flat of my own in 1994 by the council and moved to Mixenden, which brought its own problems caused by prejudice.

From here I was able to start rebuilding my life. I found some casual work in a local garage and after a month or so I told the garage owner that I was transgender before he heard it from a new customer who knew of me. I initially thought he would be prejudiced against me but once I had explained my stance he became a good friend. Even though I now had a firm address full employment still eluded me due to lack of qualifications or experience, or so employers told me.

I had suffered from mild depression for many years and had put this down to my struggle to become the woman I always should have been, but now realised that was not the case. My depression also had a side effect in that I found it difficult to socialise as I would often end up arguing with people over nothing.

Clearly Brook is a troubled and vulnerable person, who was being treated by a doctor for gender dysphoria, but does that mean a right to use spaces provided for the bodily privacy of the opposite sex?

The Equality Act allows provision of single sex services for various reasons including “circumstances where a person of one sex might reasonably object to the presence of a person of the opposite sex” (Schedule 3, paragraph 26 (6). This was the exception that the publican was using (probably unwittingly) in providing men and women’s toilets.

And a woman did reasonably object to the presence of someone she rightly perceived to be male.

My speculation….

So why did Judge Miller not consider the precedent of Green in determining whether the correct comparator for Brook was a man or a woman? Or why did he not consider whether the gender reassignment discrimination exception in Schedule 3 paragraph 28 of the Equality Act could be used as justification for exclusion?

My guess is probably because the publican Barry Tasker did not bring these points of law up. We do not know if he was a litigant in person, or had representation. Either way possibly he went to court thinking the whole thing was ridiculous, and assumed it would be thrown out. He viewed Brook as a man and had treated Brook like any other man; he had done (in his mind) the obvious and right thing in backing up a woman who had been made scared and uncomfortable by the presence of a male in the women’s toilet (I have found no suggestion anywhere that he was disrespectful or derogatory to Brook in doing this). His experience as a publican had probably taught him that having non-negotiable rules about whether adult males are allowed in the women’s toilets was entirely sensible, and his responsiblity was to maintain order in his pub.

Perhaps the idea that discrimination law might be used to force him to treat a man as a woman, in a situation that would humiliate his female customers, and put them at risk just never occurred to him. (And perhaps Alex Sharpe is wrong in thinking that this is what the legislators were thinking when they included “gender reassignment” in the Equality Act; perhaps they just meant that transsexuals should not be discriminated against or harassed in general, in employment and as customers).

What was the judge thinking? Perhaps he consulted the EHRC Code of Practice or other guidance. Perhaps his attention was drawn to the EHRC guide for business, which at the time said specifically a transsexual person should not be given a worse standard of service in a pub by “refusing them access to the toilets appropriate to the sex in which they present.” (this was removed from the guidance in 2018 ). Perhaps he was influenced by the Equal Treatment Bench Book which calls the protected characteristic sex “gender” and advises judges to ignore questions of anatomy and biology, and says that a self identified transwoman should simply be referred to as a woman.

Whatever it was, there was no sign that he considered and dismissed the finding in Green. Nor that he found it was not “a proportionate means to a legitimate aim” to exclude males from women’s toilets.

Rather he seems to have been convinced that “transwomen are women”, or at least that is what you are meant to say, and this made him forget to consider that what was at stake was a workable policy to protect the ordinary dignity, privacy, inclusion and safety of women drinking in the pub.


1 June 2020 Update: I enquired to Kirklees Law Centre for any more information on the case:

They confirmed that the publican was a ‘litigant in person’ (i.e. did not have a lawyer), and also that he did not attend the final hearing. So the case was uncontested – the Judge only went through the the claim and spoke to Brook. “As there was no Defendant present he went no further. Judgement was reserved and sent out later. There are no reasons.”

The mystery of why the publican didn’t defend the case is solved quite prosaically: he attended the preliminary hearing to say to the judge that there was no point to the case, because if damages were awarded he would wind up the company (and that is what he did).

The question of whether discrimination arose from Brook not being allowed to use the female toilet facilities or from Brook being barred from the pub was not raised, nor was there any examination of evidence on the circumstances that led up to Brook being barred that day.

This is the full basis on which the case was decided. It should not be taken as an authority for anything – either formally in law, or informally by presented as so in government documents and guidance.

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The incoherence of government guidance

The core question that this website is concerned with is whether, and on what basis, male adults have the right to use “female-only” single sex services, include those services provided for everyday bodily privacy (under Schedule 3, paragraph 27 (6) of the Equality Act 2010 in the UK):

Whatever your instinct on the question it is clear that policies must be clear and workable: everyone – female, male, those who identify as transgender, and the duty staff managing facilities need clarity. Everyone needs to know what to expect: who is allowed where, and what questions they are allowed to ask.

The need for clarity is a very basic requirement in situations where people are undressing and vulnerable. Without this, everyone’s privacy and dignity is at risk.

So people turn to the Equality and Human Rights Commission (EHRC) for guidance, or to the Government Equalities Office.

The EHRC Code of Practice (2011) for services, public functions and associations says this:


If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.

EHRC Code of Practice, 2011

“Transsexual people” is a term that is defined in the Equality Act more broadly than in everyday speech as someone “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” (Equality Act 2010 s. 7) It does not require any medical procedure (and it does not mean that a person’s sex has changed).

There is no definition of “gender role” in the Equality Act.

The EHRC’s online guidance says this:

If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender.

EHRC online guidance, 2019

“Acquired gender” is language from the Gender Recognition Act (which also does not require surgical changes). It is not used in the Equality Act.

In their most recent guidance “What equality law means for your business” (2018) they have changed the wording again.

Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents.

EHRC Guidance, 2018

The EHRC never set out clearly what any of these different formulations mean (and the fact that they keep changing the words suggests they haven’t thought it through themselves). None of it addresses the practical question of what a service provider should do in the situation where a person has a “gender role” (for example clothing) or an expressed gender identity which is different from the recognisable fact of their sex?

How are service providers supposed to train their staff to recognise these gender roles — if women can wear short hair, jeans and no make up, what is the “gender role” that transwomen must play?

Alternatively if they interpret “sex in which they present” to mean imperceptibly passing; how are they supposed to convey this policy respectfully to customers who would like to believe that they pass but in fact do not?

Guidance from the Government Equalities Office “Providing services for transgender customers” (published with the transgender lobby group Gendered Intelligence in 2015) says that instead service providers should accept that gender is not something they can ascertain:

Try not to assume you can always tell someone’s gender by looking at them or hearing their voice.

GEO Guidance 2015

The GEO guidance says that the deciding factor is the transgender person’s own choice:

A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present.

GEO Guidance 2015

They define trans people to include part-time cross-dressers and those who consider themselves non-binary.

Trans people come from all walks of life and include those who may describe themselves as transsexual, transgender, a cross-dresser (transvestite), non-binary and anyone else who may not conform to traditional gender roles.

GEO Guidance, 2015

It gives as an example of unacceptable direct discrimination:

Refusing to allow a [trans] woman to use female facilities because staff perceive her to be male.

GEO Guidance, 2015

How did they get it so wrong?

All of this guidance put service providers in a position of humiliating either female customers or transgender customers and having angry stand-offs and upsets. All of it ignores the point of separate sex facilities in the first place: people of one sex can reasonably object to sharing intimate spaces with members of the opposite sex.

Allowing male adults to undress with women and girls is “unwanted conduct related to a relevant protected characteristic” which has the effect of creating an “intimidating, hostile, degrading, humiliating or offensive environment” – in other words, the definition of harassment in the Equality Act (s.26)

The guidance goes wrong from the outset in assuming that the Equality Act gives some transgender people the the right to share facilities intended for the privacy of members of the opposite sex. In fact it does not. It states that it is unlawful to discriminate against or harass a transsexual person in general.

Transsexual people (like everyone) have a right not to have their reasonable privacy interfered with. People should not have to talk about their mental health diagnosis, medical treatment or surgery.

But it is legitimate to have unambiguous policies about who can use a single sex service, which requires people to honestly declare their sex.

Separate sex facilities are therefore not suitable for everyone.

All of the official guidance make the mistake of encouraging trans people to break the rules and telling service providers they must make individual “case by case” determinations of whether an individual can be allowed into a particular service intended for the opposite sex.

All of this requires asking intrusive questions or judging the stage, validity or completeness of a person’s gender reassignment process. For example the GEO guidance from 2010 tells service providers to take into account:

This is an impossible ask – since questions about the “stage of gender reassignment” are intrusive.

A workable approach is for service providers to offer unisex alternatives to accommodate people for whom the rules governing separate sex services don’t work so that no intrusive questions need be asked and everyone has a space to undress with ordinary privacy and dignity.

The confusing mess of current guidance does not protect the rights of either women and girls or transgender people.

The Government Equalities Office and the EHRC should review its guidance to protect everyone’s rights.

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“The transman gotcha”

Single and separate sex services are provided to meet the needs of people of one sex or the other. Often this need is simply for a place to undress, wash, and undertake bodily functions with privacy and dignity, in order to take part in public life such as at the gym, pub, clothing shops, school, university, train station or at work.

In the UK this basic privacy is provided for under the Equality Act – Schedule 3 Paragraph 27 (6)

This section of the law reflects some facts of life that were until quite recently taken for granted – people come in two sexes, people can usually recognise the sex of other adults, and there are circumstances (especially involving undressing and being vulnerable) where it is reasonable to object to having to share a space with a member of the opposite sex.

Single sex spaces are created by institutions setting rules: for example “women only: no males in here”, and people complying with the rule.

Most people follow the rules, not because they are necessarily strongly policed (there is no one checking IDs at the door), but because they understand that transgressing other people’s boundaries is inappropriate. The formal rules, and any enforcement of them is a backstop to this social norm.

There are many arguments mustered by people who want to erode this social norm, to tell women and girls that their boundaries are bigotry, to say that is fine for males who want to access spaces where women are undressing to break these rules and to make it impossible to enforce them.

The “trans man gotcha” is one of those.