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.

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.


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.


“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.

Myths about the equality act

“They are rarely used”

The Single and Separate Sex Exceptions in the Equality Act 2010 are the bit of UK law which allows single sex services. They are tucked away in Schedule 3, Part 7, Paragraphs 26 and 27 and it is sometimes said they are ‘rarely used’, or that service providers have to choose to use them in exceptional circumstances. This is a myth and a misunderstanding.

Single sex spaces, such as women’s and men’s changing rooms, toilets, dormitories, hospital wards, and women’s refuges are not natural features of the landscape; like mountains or rivers to be explored. They are created through plans, policies and rules – service providers create a single sex space by adopting a policy that an area is only open to people of one sex (and in some cases their accompanying small children). In other word they discriminate. They communicate the discriminatory policy with words and signs.

Female sign

When you do that they are using the single sex exceptions in the Equality Act.

That is it.

A service provider doesn’t have to do anything else to use an exception (although it is always a good idea to consider the reason for policies, and write them down).

What the exceptions in the Act do is allow sex discrimination in situations where sex discrimination is justified. If challenged (including in court) the service provider can say the discriminatory policy, as communicated by the sign, is objectively justified and allowed by the Equality Act.

Using the exceptions does not mean service providers have to make a separate objective justification every time the policy is used (i.e. every time a person is excluded from sharing an intimate space with members of the opposite sex ; usually people just comply with the sign).

“But these are not ‘single sex services’ they are ‘single gender'”

Some people make an argument that despite such single sex services being an everyday feature of of life — in schools, colleges, shopping centres, gyms, parks up and down the country — the Equality Act exceptions are nevertheless rarely used because these are not in fact single sex services, but something else: “single gender services”.

Thus they say these spaces are not covered by the Equality Act at all.

This is nonsense on stilts.

Firstly the kinds of services that are provided on a single sex basis are exactly the kinds of situations that are covered by the criteria set out in Schedule 3 Part 7 of the Equality Act and mentioned in the explanatory notes.

Secondly, most people understand the words man and woman, male and female and the associated symbols to mean a person’s sex. You might say “gender”, but most people will answer with their sex, and not realise you were meaning some other concept (and it is never clear what is meant by gender). They could well object to sharing an intimate space with a person of the opposite sex, having not given their consent.

Thirdly the Equality Act also includes “discrimination by perception”. One meaning of gender is “the sex that other people perceive you to be”. Thus if a service provider were to try to justify a discriminatory policy by saying the sign doesn’t mean sex but “the sex you are perceived to be by others” (and you call that ‘gender’) they would still be discriminating on the basis of the protected characteristic of sex. They would still be relying on the single sex exceptions (an employer couldn’t for example have a policy of only hiring men for senior positions and get away with saying that it is based on their “gender” (perceived sex), and therefore it is not sex discrimination).

Finally the Equality Act also includes indirect discrimination. That is, applying a rule which applies equally to everyone but which affects certain groups differently. So if a service provider writes down that their policy is to provide ‘gender’ segregated spaces based on internal feelings of “gender identity” and not sex, they are still likely to be discriminating on the basis of sex since most people without a degree in gender studies will still understand that the sign means their sex. This would be like a having a policy of saying you won’t employ people called Singh and arguing that it is definitely not religious or race discrimination.

What these word games, and arguments that “single sex services are uncommon”, or are “not really single sex services” are designed to do is to distract from the reason for single sex services in the first place.

The most common reason, which is allowed for in the Equality Act at Schedule 3, Paragraph 27 (6), is bodily privacy ” when a person of one sex might reasonably object to the presence of a person of the opposite sex.”

Single sex services are by their nature not for everyone, and people who don’t want to share with others of the same sex can usually be accommodated in unisex facilities. What they cannot do is demand to share intimate spaces with members of the opposite sex without their consent.

Protecting everyone’s rights and dignity means being clear about whether a service is single sex or mixed sex. This requires clear, unambiguous rules, not word games designed to confuse.


CPS Guidance undermining consent withdrawn

The Crown Prosecution Service has withdrawn an anti-bullying guidance pack for schools developed with Stonewall and Gendered Intelligence, after a 14-year-old girl brought a legal action.

The pack, which has been withdrawn for review, encouraged schools to tell girls to ignore their discomfort and not object to males entering single sex spaces such as toilets and changing rooms.

One of its teaching exercises features a video scenario where an adult male presenting in a feminine style enters the women’s toilets. Two young women at the sinks whisper their discomfort: “What’s he doing in here? This is the Ladies”. The next time the person uses the Gents’ where two middle-aged men shout abuse and bang on the door.

The class discussion guidance says

“Ask the students what happened in the clip. Thinking about how the girl in the clip was treated, can the class understand why she might have felt hesitant about going into the toilets?”

CPS Pack

(by ‘girl’ here they mean the adult male)

As the legal letter to the CPS points out it is not safe for girls to learn that they should consider an adult male using a facility intended for their bodily privacy as a ‘girl’.

The activity sheet asks:

Can you say why the person went into the ladies’ toilets and not the mens’ toilets? How did the women behave towards her? How did that make her feel?

As the legal letter say these questions suggests that it was the young woman’s fault that the men harassed the feminine presenting male.

The guidance tells pupils that transgender people must be supported to use all the facilities “appropriate for the gender with which they identify themselves”. It goes on to suggest that a school offering the unisex, accessible toilets is not an acceptable solution for a male who does not feel comfortable using the mens.

The guidance completely fails to consider the feelings of women who may feel genuinely threatened.

Letter from Sinclairs Law to the CPS

Girls are taught that they should not make a male entering the women’s toilet feel ‘unwanted’, indeed the pack suggests that this might be a police incident or a hate crime.

Following the lawyer’s letter-before-action (supported by The Safe Schools Alliance and Faircop) the CPS has withdrew the guidance for review.

Certainly the CPS and the Police who produced the pack will have to consider whether the guidance is worth defending in court. But hopefully it has reached the attention of someone within the hierarchy with the sense and decency to be appalled that some corner of their organisation has have been issuing guidance that undermines girls’ consent in name of inclusion.

Hopefully, more organisations are remembering that girls and women have rights to bodily privacy. In a rush to support transgender peoples’ human rights and get gold stars from Stonewall they may have forgotten why single sex spaces exist in the first place.

The teenager who brought the legal action, with the Safe Schools Alliance said:

“I’m happy that I’ve been able to have helped girls all over the country keep their right to say no and not get accused of bullying.”

Teenage girl who brought the case

Baroness Nicholson writes to the Minister

Baroness Nicholson has written to Liz Truss highlighting that the Equality Act is misrepresenting in official guidance.

I see the wording of the Equality Act 2010 has been distorted which results in departmental and institutional guidelines which differ significantly from the Act; and have been wrongly laid down as correct.

Leading to….

extraordinary results for the professionals required to implement the guidance and for the population, especially girls and women whose traditional rights to privacy, dignity, personal identity, and honour have been bent outside of all recognition of normal behaviour patterns.


Edward Lord Responds on Single Sex Spaces – and that survey

Edward Lord, Deputy of the City of London wrote to Liz Truss saying that based on a City of London survey “the findings are clear” single sex spaces should be open to people of the opposite sex based on gender identity.

“Shortly after taking up my current role in the City of London, the Corporation launched its own consultation in respect of transgender inclusion to inform our policy on gender identity in our service delivery and employment practices. This was in response to concerns expressed by some anti-trans campaigners who challenged the Corporation’s interpretation of the Equality Act to permit trans women to use the Highgate Women’s Pond on Hampstead Heath.

As part of the policy formulation exercise, we put out an open access online opinion survey asking a range of questions about attitudes towards trans people and their access to public services. The findings were very clear. Of the 21,191 respondents who completed our survey (of whom 53% were women):

68% agreed that ‘a person who consistently identifies with a gender (being different from the gender assigned to them at birth) should be able to access services commonly provided to that gender’; and

Women were in a majority of all of those positive responses.

Edward Lord, Letter to Liz Truss

The findings are clear?

You may remember that survey. Here is the report from it.

The survey process was overseen by Edward Lord, Chairman of the Establishment Committee of the City of London Corporation who has strong views on this topic. As Lord says in their letter to Liz Truss they view they view people who raised concerns at the loss of single sex spaces as “anti-trans campaigners”. Those who agreed with Lord’s view they call “positive responses”.

Edward Lord who identifies as neither wholly male or female

The headline finding is that 68% of respondents agree that a person who “consistently identifies with a gender which is different from the one they were assigned at birth should be able to access services commonly provided to the gender with which they now identify”

Around a quarter disagree. One of the members of the “Establishment Committee” commented that those who disagree need to have their attitudes changed, and asked for details of the answers from city workers.

A Member commented that he would encourage officers to question the responses which were least in agreement with the questions posed in the survey, particularly if those were City of London workers. The Member added that in order to change attitudes, it is necessary to understand why people hold certain views, and asked officers to look at getting those answers.

Establishment Committee Meeting Minutes, December 2018

Lord blocks anyone who so much as follows accounts that disagree with their view that single sex spaces are exclusionary.

As last count at least 1,821 people that had been blocked by Edward Lord, of which 83% were women, only 5% had ever interacted with the elected politician.

An oddly discrete survey

The survey was mainly promoted by being tweeted from Edward Lord’s twitter account. As University College London social sciences professor Alice Sullivan, pointed out at the time, the consultation was been handled in an “oddly discreet way”.

“Apparently it was first tweeted in early July but I did not find out about it until early August,” she added. “They only informed the Parliament Hill running track users group about the consultation after I prompted them to do so, yet it affects the track changing rooms. As a survey researcher, I know a good survey asks specific questions in clear English. This consultation does not do that. It asks vague questions which many people won’t understand.”

Alice Sullivan, UCL Professor

Confusing language

The survey does not explain which services the city of London manages and therefore what kinds of services and situations the questions cover in practice. 

A sign at one of Hampstead Heath’s previously single sex ponds

The survey conflated sex and gender and uses confusing language such as “gender assigned at birth”. Most ordinary people would have no idea what this relates to: is it intersex people? People who have had ‘sex change operations’? Few would have an inkling that it could just mean people who have changed their pronouns.

This was raised before the survey closed by several respondents . Marcus Roberts of the City of London told them:  

“Regarding the survey, we need to review our use of the terms “sex” and “gender” to ensure we are getting this right going forward. However with the survey now live, I am confident that it allows respondents to make the points that you make in your e-mail – including raising concerns about the language of the survey (using the free text boxes). We will then reflect on these responses as part of  our review of how we should take policy forward.”

Marcus Roberts Head of Strategy and Performance, Department of Community and Children’s Service, City of London

Nothing was ever heard again about clarifying this.

So who answered the survey?

Since the survey mainly went out though Edward Lord’ networks the survey responses are severely skewed. Young people were overrepresented with 12 responses from 18 to 35  year olds for every one from over 45 year olds. Nearly a quarter of the respondents said they are bisexual (23%), a very high proportion compared to the general population. Replies from people not living anywhere near the City of London swamped those that came from residents of the City of London’s housing estates or users of services such as the atheletics changing rooms and ponds on Hampstead Heath .

While the survey was self selecting rather than a representative survey, it would at least be possible to break down the results by different demographic groups – in practice the independent consultants only report the headline that twice as many respondents agree with the proposal “that where facilities are restricted by gender, those restriction should relate to the gender with which the service user consistently identifies now”. Given the clear a lack of representativeness the survey respondents there is no validity to this finding. 

The Equality Act?

The survey was analysed by a firm called “Smart Consult” who operate out of a mailbox in East London. They said “Comments that are abusive, discriminatory and/or contrary to the Equality Act 2010 have not been used in this report.”

Smart Consult’s address

How did they know which comments were “contrary to the Equality Act?” It seems they asked the City Corporation.

Some felt that the consultation was inconsistent with the Equality Act 2010 in the way it used the terms ‘sex’ and ‘gender’” a claim that was considered and rejected by the City Corporation. 

Smart Consult survey report

Who was that then?

That would be Edward Lord, as October 2018 minutes of the committee meeting showed:

“The Chair explained that access to the Corporation’s services and facilities is not an area where the Corporation would have much discretion, and nor should it. It was explained that the Equality Act 2010, ensures that trans people, or those with the protected characteristic of ‘gender reassignment’ should not be discriminated against in any service or facility and public authorities like the City of London Corporation have a legal duty to ensure trans people are included through all of its services. The Chair further advised that this is what the policy refresh is about: giving all of the City of London Corporation’s services and facilities a policy framework together with support and guidance to ensure that trans and non-binary people have equal access.”

Establishment Committee, October 2018

The ‘independent consultant’s report states that restricting access to services depending on ‘biological sex’ “would be inconsistent with the Equality Act 2010, other than in exceptional circumstances”. They do not reference this statement and it seems likely that they are simply repeating back what they have been told by their client. 

So in summary:

  • The survey was massively skewed towards Edward Lord’s personal networks and away from the many women they have blocked on social media.
  • Older people were particularly underrepresented.
  • The survey’s language was incomprehensible most people would not understand what was being proposed.
  • The interpretation of the Equality Act in the independent consultants report is not referenced to any lawyers, and seems to be Edward Lord’s view.
  • Comments which disagreed with this interpretation of the Equality Act were not included in the report.
  • Still over a quarter of respondents disagreed with the proposition that access to single sex services should be based on gender identity. Their responses were not deemed to matter. The Establishment Committee instead discussed how to change their attitudes.


Nine women’s groups respond on Single Sex Spaces

Fair Play for Women, FiLiA and all of the women’s declaration groups from across the Conservative, Labour, Lib Dem, SNP, Green and Women’s Equality Party sent this letter to Liz Truss.

“Everyday single sex spaces are particularly important for women and girls. The question about whether a space is single sex or mixed sex shouldn’t be ambiguous to customers or to staff. Everyone deserves peace of mind, and to be treated with respect.
Clarity about single sex spaces is crucial for individual dignity, and
opportunity as it ensures that people of both sexes and people of all
religions, and ages are able to access work, education and leisure
opportunities which would not be available to them if they could not undress without assurance of not being overlooked by members of the opposite sex.”


WPUK response on Single Sex Spaces

Women’s Place UK said

“We welcome the clear commitment by the Government to uphold all these existing rights and ensure they are properly understood by service providers and users. Work is now needed to ensure that any policy changes by councils, public services, other organisations and businesses which have leapt ahead of the law are revisited and, where necessary, revised so the right to single-sex provisions is properly respected and applied. It is also vital that women are properly represented and consulted in any policy making or changes to the law.”