Anyone affected by the RFU's decision may wish to consider their legal options.


By Dr. Sophie Hyland PGDL (Lincoln's Inn)


Introduction


On Friday 29th July, the English Rugby Football Union (“RFU”) announced a long-expected update to its gender participation policy, according to which transgender women will no longer be able to participate in female categories in the contact form of rugby union. Trans men wishing to compete in male categories can still do so, subject to a written application and the performance of a risk assessment.


It is our view that the updated gender policy does not accord with UK equality legislation, namely the Equality Act 2010. The blanket prohibition on transgender women, and the administrative barrier placed upon transgender men, both constitute direct discrimination under the 2010 Act and are unlikely to satisfy the requirements of the sporting exceptions set out in s.195 of the Act. We set out our analysis below.


The applicable law


Per the 2010 Act, there are two species of discrimination which are generally unlawful: direct and indirect. For the purposes of our analysis, it suffices to focus on direct discrimination, as set out by s.13(1):


A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.


The relevant protected characteristics, that is the personal qualities on the basis of which it is generally unlawful to discriminate against an individual or individuals, are given by section 4 of the Act. Gender reassignment is one such personal quality. Section 7(1) provides further guidance on this point:


S.7(1): 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.


The rugby union players affected by the RFU’s new prohibition will all, therefore, share this protected characteristic by reason of having transitioned, or being in the process of transitioning, to their identified gender. To refuse transgender women permission to play rugby union is to treat them less favourably than cisgender women on the basis of the protected characteristic of gender reassignment. Equally, to refuse transgender men permission to play rugby union barring a written application and a risk assessment is to treat them less favourably than cisgender men.


In most industries, this would suffice for the discrimination to be unlawful. A restaurant refusing to serve a transgender customer on the basis of their transgender identity would do so unlawfully under these provisions. However, in this context, the RFU will place reliance on the sporting exception outlined by ss.195(1) and 195(2) EA 2010:

  1. A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

  2. A person does not contravene sections 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity – 1. fair competition, or 2. the safety of competitors.

In other words, a body governing a national sport may discriminate against transgender athletes such as to prevent them from participating provided that it is necessary to protect the fairness of the competition or the safety of the other competitors. Ultimately it does not suffice that a prohibition may make an objectively positive contribution to competitive fairness or player safety. The Act provides a defence only insofar as the governing body had no option but to implement the ban in the pursuit of one or both of those aims.


Necessity


In our view, it is difficult to see how the test of necessity is met. Moreover, should any transgender rugby player bring a claim of discrimination against the RFU, the burden will be on the RFU to show that the ban was necessary. This follows from the Explanatory Notes to the Equality Act at paragraph 443:


in any claim where a person alleges discrimination [...] under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.


It is the claimant’s job to demonstrate that being prevented from playing rugby union on the grounds of their gender reassignment constituted direct discrimination. Once this is done, it becomes the job of the RFU to demonstrate that the discrimination was necessary to pursue one of the statutory aims in s.195(2) EA 2010.


This position was confirmed by the UK Supreme Court in the recent case of Royal Mail Group Ltd v Efobi [2021] UKSC 33, at paragraph 15, which held that once a prima facie case of discrimination under EA 2010 is made out by the claimant, the burden shifts to the defendant to persuade the court that any of the statutory exceptions apply. The court’s reasoning was that: ‘A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer’s subjective motivation.’ In other words, the claimant must show that they have been treated worse than a comparator on the basis of one of the characteristics listed in s.4 EA 2010. Once the claimant has done so, the burden falls on the defendant to justify the necessity of the policy, as it is the party most equipped to present positive evidence on its reasons for considering it to be necessary.


The gender participation policy as applied to trans women


Per the RFU’s announcement, the very premise of the blanket ban on trans women’s participation in rugby is the ‘physical differences between those people whose sex originally recorded as male and those at female at birth, and advantages in strength, stamina and physique brought about by testosterone and male puberty [...] retained even after testosterone suppression.’ So, to successfully defend against a discrimination claim by a transgender woman affected by the recent prohibition, the RFU would be required to demonstrate that the physical differences cited were such that there was no alternative but to prevent trans women from playing rugby altogether.


The RFU’s burden will be made all the heavier by relatively recent case law from the Court of Arbitration for Sport (CAS), particularly its decision in Dutee Chand v Athletics Federation of India (CAS 2014/A/3759). In that case, the CAS held that the IAAF could not demonstrate that a policy of prohibiting cisgender females with hyperandrogenism (an anomalously high concentration of testosterone in the bloodstream) from competing in international athletics events was proportionate to the aim of ensuring fairness in women’s competitions. The question as to whether a measure is a proportionate means of achieving a legitimate aim is a somewhat lower bar than whether it is necessary to achieve that aim. A blanket ban on athletes from competing in women’s categories on the grounds of elevated testosterone was not held to be proportionate in the Dutee Chand case. Should a domestic court be persuaded by the reasoning in that case, it would be difficult to persuade it that a blanket ban on rugby players from competing in women’s categories on the grounds of physical difference and elevated testosterone was necessary.


The RFU may point to differences between rugby union and IAAF events, namely the fact that rugby union is a contact sport, and that allowing transgender women to engage in contact sport with cisgender women is a direct threat to safety and fairness. While this difference is relevant, it does not offer strong support for the necessity of the updated policy. The argument would rest on an overly simplistic, untenable distinction between bodies considered to be male and female respectively. It is not a matter of course that a body which has undergone androgenic puberty will be more physically capable than a body which has not; the range of human physiology cannot be straightforwardly taxonomised in this way. Per paragraph 353 of the CAS judgment in Dutee Chand, other differences offer competitive advantages which cannot be straightforwardly sorted into gendered categories. These include height, vision, aerobic capacity, access to facilities and coaching, access to sports science services and access to nutrition. The point that transgender women must be prohibited from competing in women’s rugby rests on the fallacy that transgender women will always be more physically powerful than cisgender female competitors and colleagues, and that where this is the case, it is straightforwardly a consequence of male physiology.


Moreover, it is clear that elevated testosterone is a phenomenon observed in those assigned both male and female at birth. It is recognised that the condition of hyperandrogenism provides an athletic advantage to cisgender female athletes. Yet the updated gender policy makes no mention of cisgender females with that condition. Should the policy be subject to a legal challenge under the Equality Act, the RFU would have to justify why the interests of safety and fairness required that transgender females be prohibited from competing in women’s rugby on the grounds of elevated testosterone, while cisgender females with the same competitive advantage would be exempt from that same prohibition.


It should also be noted that not all those whose sex is recorded as male at birth undergo male puberty, and therefore acquire the competitive advantage on which the RFU’s updated policy relies. This is particularly so thanks to the availability of GnRH analogues - colloquially referred to as ‘puberty blockers’ - which prevent the onset of unwanted natal puberty in transgender patients. There is therefore a class of transgender women who have never experienced the increased testosterone levels which are associated with a competitive advantage over most cisgender women. Yet this class of players is still very much caught by the blanket ban on the participation of transgender women in sport. Therefore, despite RFU President Jeff Blacket’s statement that the decision ‘has been based on all the scientific evidence available,’ it is difficult to envisage what scientific evidence could satisfy a court that it was necessary to prevent such a transgender woman from playing women’s rugby on the grounds of testosterone-related physical advantages which she never in fact gained.


The existence of this class of potential competitors would also lead to a particularly bizarre situation. A transgender female who never underwent male puberty, and whose testosterone had never exceeded the normal range for cisgender females, would be prohibited from competing in women’s rugby, whereas a cisgender female with hyperandrogenism would not be so prevented, despite manifestly enjoying exactly the competitive advantage with which the RFU seeks to justify the ban. That some cisgender female players would enjoy the benefits of elevated testosterone while some transgender female players would not, fundamentally undermines the necessity of banning the latter group on a blanket basis.


In its announcement, the RFU further claims that it did consider the merits of a ‘case-by-case assessment process’. It states that various considerations precluded this, including uncited ‘research findings’ and the ostensible ‘difficulties in identifying a credible test to assess physiological variables.’ One would expect the RFU to justify its new policy as necessary on the basis that a more pragmatic approach might be impractical. However, this justification is self-defeating. It is contradictory to argue at once that the current state of scientific knowledge requires a prohibition on transgender females from participating in rugby union, yet is not sufficiently advanced to be able to assess the necessity of banning individual transgender females. Put another way, the RFU relies on the notion both that the science points to some quantifiable metric that requires the exclusion of trans women from women’s rugby union, and that the science is incapable of identifying that quantifiable metric in an individual trans woman. The reason that it is difficult to identify a credible test to ‘assess physiological variables’ in individuals is presumably that any competitive advantage conferred upon, or any increased risk to teammates posed by, transgender women cannot straightforwardly, measurably be attributed to natal male physiology.


The RFU’s point that a case-by-case assessment would be unworkable in the light of the difficulties of reducing the issue to a single test is a tacit admission that the necessity of the ban is not supported by evidence. In fact, in terming this a ‘precautionary approach’ adopted until further peer-reviewed science becomes available, the RFU seeks to perform a sleight of hand, reversing the burden of proof onto those who believe that the ban is not necessary in the interests of safety and fairness. Yet the burden remains on the RFU to prove the necessity of excluding trans players from women’s rugby. By terming this approach ‘precautionary’, it admits that the ban is a response to a theoretical risk which has yet to be scientifically identified. It will be for the RFU to prove that an unidentified, unsubstantiated risk to safety and fairness requires that all transgender female players be excluded from the sport. There will be no burden on any claimant to prove that no such risk exists.


The gender participation policy as applied to trans men


It should be noted that the updated gender participation policy also applies to transgender males. Trans men would also suffer direct discrimination by comparison to cis men, by suffering an administrative barrier to participation not faced by cis counterparts, and by facing a risk assessment which could cause them to be excluded on the basis of their characteristic of gender reassignment. In such a case it is also difficult to imagine how this policy could be justified as necessary in the interests of safety and fair competition. This is particularly so given that transgender males seek to compete in the male category, and will usually receive exogenous testosterone which is the basis of the impugned competitive advantage conferred upon transgender females.


It therefore cannot be the case that a written request and a risk assessment are necessary to ensure fairness to other competitors. Nor would the presence of a transgender man sensibly present a significant safety risk to cisgender competitors. Perhaps the RFU would justify its policy by reference to the fairness to and safety of the individual transgender male. Yet this is unlikely to be persuasive. Ensuring fair competition for the trans male cannot be achieved by preventing him from competing at all. Nor does it follow that a trans man would inevitably be at a greater safety risk as compared to other competitors such that he would be required to pass a risk assessment to be entitled to compete. For it is entirely plausible that a trans male player may be more physically capable than a given cis male opponent who would not be required to pass a risk assessment in order to play. In such a circumstance it is practically impossible to justify subjecting the former to an additional administrative barrier as compared to the latter.


Conclusion


The Equality Act 2010 would provide a formidable cause of action against the RFU’s updated policy on grounds of direct discrimination. The sporting exception set out in s.195(2) EA 2010 will only avail the RFU where it can prove to the civil standard that the interests of fairness and safety absolutely require trans women to be excluded from women’s rugby union and that trans men’s inclusion be subject to a risk assessment. It will have to justify this policy despite its own admission that the differences between male and female physiology are too scientifically complex to be reduced to a straightforward test, and despite the policy not extending to cisgender people enjoying similar physical advantages. The policy will particularly struggle to justify itself in the light of the fact that not all transgender women went through male puberty, and in fact that not all those who did will inevitably enjoy a significant physiological advantage over cisgender counterparts.


It will also be particularly difficult to defend the policy of requiring trans men to undergo a risk assessment in order to participate in a category in which endogenous testosterone levels have never provided the basis for excluding an athlete. A transgender male selected to compete on a men’s team on the basis of his athletic ability, but whose entitlement to do so was subject to an additional administrative burden, would have a strong claim under EA 2010 to challenge the validity of the policy in and of itself. It is therefore our view that the RFU’s policy will struggle to withstand a legal claim under the Equality Act 2010.




With the daily firehose of transphobia in the UK, it is hard to believe that it is only three months ago that the Equality and Human Rights Commission (EHRC) published its guidance on Single and Separate Sex Services (SSS). We were outraged that the EHRC, responsible for enforcing the Equality Act 2010 (‘EA 2010’), had published transphobic guidance that could actively encourage organisations to break equalities law. In April, we wrote a letter to the EHRC signed by thirty-nine legal and associated professionals plus academics and others active in the field to express our serious concerns. After an extended delay (during which time we were told that they were receiving ‘legal advice’), we have now received their reply. It is here and this blog will make the most sense if you read it first. In summary, the EHRC has not challenged our legal assertions or citations but instead, it claims that the guidance is consistent with them.


Legal principles


In particular, the EHRC has not disputed the following legal principles or their citations:

  • Service providers are under no legal obligation to use the EA 2010 sched. 3 para. 28 exception (FDJ v Secretary of State for Justice [2021] EWHC 1746 para. 88)

  • Blanket bans against trans women are not lawful (Croft v Royal Mail [2003] EWCA Civ 1045 para. 53, “Services, public functions and associations Statutory Code of Practice” (‘Services Code’) para. 13.60)

  • Should a service provider wish to make use of the EA 2010 sched. 3 para. 28 exception to discriminate against a trans person, then a case-by-case approach must be taken (Services Code para. 13.60)


The ERHC’s view of the guidance


The EHRC claims, bafflingly to us, that the non-statutory guidance it recently issued is consistent with both the legal principles above and also the Services Code.


The EHRC, in its reply, also “strongly disagree[s]” with our statement that the ‘Guidance implies that the impact on cisgender people of trans people’s use of single/separate sex services “must be a proportionate means of achieving a legitimate aim”’. However, the guidance includes this incredibly misleading passage:


If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions. Under these provisions, your approach must be a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users


The passage does not make it clear that:

  • There is no need for a service provider to discriminate against trans people

  • There is no need for a proportionality test and no need to carry out a balancing exercise if a service provider chooses not to discriminate against trans people.

  • Proportionality only applies to the discriminatory effect on trans people on any restrictions on their usage of the service.

The reader of the passage is left believing incorrectly that the impact of the approach on both transgender and cisgender people needs to be proportional[1].


The EHRC claims that the guidance “does not promote a blanket ban on trans-users”. However, immediately after the section of the guidance we quoted above, there are six examples. Four of the examples feature the spectre that trans women service users might share a SSS service with cisgender women service users and in all four cases, from group counselling to exercise classes, from domestic abuse refuges to toilets, the guidance suggests a blanket ban of trans women:


A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend …”


A domestic abuse refuge offers emergency accommodation to female survivors … The provider decides to exclude trans women ….”


A leisure centre introduces some female only fitness classes. It decides to exclude trans women …”


A community centre has separate male and female toilets. It conducts a survey in which some service users say that they would not use the centre if the toilets were open to members of the opposite biological sex, for reasons of privacy and dignity or because of their religious belief … It puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet if they feel more comfortable doing so.”


The EHRC states that they disagree that the community centre example “is problematic or that it suggests a blanket ban against trans-users. It is instead simply an example of the ways a [service provider] could resolve a dispute about who should use which toilets.”


The example shows how a community centre could resolve a dispute about toilets by imposing a blanket ban on trans people using the toilet that matches their acquired gender. However, the justification for the policy is nonsensical and the policy contravenes the legal principle espoused in Croft. Far from being an example of good practice, it is a perfect example of how a community centre could put itself at risk of legal action.


One of the purported reasons for the proposed discrimination against trans people is for reasons of privacy and dignity. The policy seems to be built on the false stereotype that trans people are easily recognised. However, some trans women look identical to cisgender women and many trans men are indistinguishable from cisgender men. Indeed, cisgender men, seeing other (in fact trans) men using the women’s facilities could be misled and accidentally enter the women’s facilities themselves. As a result, if the policy was followed (although it is not clear how it could be enforced) then there would be men in the women’s toilet and women in the men’s toilet. Cisgender women would be shocked to see perhaps bearded and/or muscular men sharing their toilet. Cisgender men are likely to be intensely uncomfortable using urinals in front of women. Therefore, the privacy and dignity issues such a policy would cause, rather than being a justification for the policy, are sufficient in themselves for it to be unlawful. Further, the policy is contrary to the legal principles established in Croft.


In Croft, an employment case under the Sex Discrimination Act 1975[2], Sarah Croft was a trans woman who began to transition from male to female whilst she worked at the Royal Mail. After 7 months, her employer still prevented her from using the female toilet and required her to use the disabled toilet (which was gender-neutral). Her employer noted that female employees would often get changed in the wash basin area of the female toilets (para. 5) and also that a number of female employees from minority ethnic backgrounds had specific objects to sharing facilities with Sarah, whom they had known when she was presenting as a man (para. 15).


The Court found that for a period the employer was entitled to make alternative arrangements for a transgender employee provided she was treated with dignity and respect (para. 51) but there will come a point (para. 53) decided on a case-by-case basis where a transgender person becomes entitled to use the toilet that matches their acquired gender. This point cannot be determined by the views of other employees (para. 47) and does not require the transgender employee to have had final surgery (para. 46).


Thus, the key legal principle in Croft is that, provided a trans person makes sufficient progress in their transition, then they become entitled to use the toilet that matches their acquired gender and offering just a gender-neutral toilet becomes unlawful discrimination, regardless of either the views or cultural background of other service users. Applying the Croft principles in the context of discrimination in the services provided to the public, then once a trans person has made sufficient progress in their transition it is no longer proportionate to discriminate against them regarding access to toilets. This is completely contrary to the example given in the EHRC guidance.


It is also not possible to operate the policy in the community centre example on a case-by-case basis. Some trans people, who meet the test in Croft, will take the signs regarding usage of toilets at face value and suffer unlawful discrimination. If the gender-neutral toilet is in use, then they may also be forced to very publicly “out” themselves by using the toilet that matches their birth gender. Others, who would like a dispensation, will need to disclose sensitive, confidential (and if they have a GRC, legally protected) information to the community centre staff to be able to use the appropriate toilet.


Cisgender users of the toilets will of course not be aware of which trans people have been given a dispensation from the policy. Cisgender people would therefore be likely to challenge any user of the women’s toilets who looked ‘sufficiently trans’: including trans men and butch lesbians using the toilets in accordance with the policy and (so-called) ‘non-passing’ trans women using the toilets in accordance with a dispensation.


There cannot be any factual scenario linked to the community centre example where such a policy would be lawful.


Concluding thoughts


As there are no circumstances in which the community centre example correctly reflects the law, then following Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 we believe that the courts do have the jurisdiction to correct this error of law upon application for judicial review.


We also struggle to understand how producing this guidance is consistent with the EHRCs statutory duties under the Equality Act 2006 which include:

  • Encouraging good practice in relation to equality and diversity - s. 8(1)(a)

  • Promote awareness and understanding of rights under the EA 2010 - s. 8(1)(d)

  • Work towards eliminating unlawful discrimination s. 8(1)(f)

  • Encouraging the development of a society in which people’s ability to achieve their potential is not limited by prejudice (s. 3(a)), in which people have an equal opportunity to participate (s. 3(d)) and in which there is respect for the dignity and worth of each individual (s. 3(b))

The guidance from the EHRC, the body with a statutory obligation to protect equal and human rights for trans people, is sadly another high-water mark of institutional transphobia in the UK. Unfortunately, with the current political climate engendering a feeding frenzy of anti-trans rhetoric in Conservative Party spaces, it’s unlikely to be the last. In the meantime, we'd like to thank again all those who signed this letter alongside us in a collective attempt to make the EHRC acknowledge the pain and damage it is causing to a belleagured minority that is being more and more used as a political and cultural punch-bag.


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[1] For example, a service provider may allow all trans people to use the toilets that match their lived gender. A cisgender person could complain that this approach is not proportional as it does not take into account her distress at having to share the toilets with a trans person. However, as she is not suffering discrimination there is no need to consider if the impact on her is proportional. On the other hand, if the service provider decides to impose restrictions on trans people use of the toilet then these restrictions must be proportional. For example, rather than a blanket ban, the service provider might require trans people at the start of their transition to use a gender-neutral toilet instead. The reason why there is a requirement for proportionality is that trans people are being discriminated against.

[2] Care therefore needs to be taken in transposing these legal principles to discrimination in the provision of services to the public under the EA 2010. We have skipped a long technical discussion regarding why they apply, but as can be seen from the EHRC’s Services Code, the Croft legal principles do apply in the case of services discrimination under the EA 2010.




MACKERETH v DWP [2022] EAT 99


Dr Mackareth brought a claim against DWP for discrimination and harassment based on his beliefs (including a lack of belief in ‘trangenderism’). The Employment Appeal Tribunal (EAT) recently held that his claim remained dismissed and that he had not been discriminated against on the basis of his beliefs.


Background


The claimant is a doctor who applied to work as a health and disabilities assessor (HDA) at the first respondent’s assessment centre at Five Ways, Birmingham. That role would require him to assess claimants for disability-related benefits; his duties would include conducting face-to-face assessments and preparing reports. The claimant explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users.


Essentially, the Respondents’ request was that the claimant respect the chosen gender, pronouns and sexuality of people using the service, as per the General Medical Council’s (GMC) guidelines and as expressed in an email from Mr Owen (of the Respondent) to the claimant on 25 June 2018:


“… on behalf of [the first respondent] we would like to ask you one final time whether you would follow the agreed process as discussed in your training and that in any assessment you conduct, that you refer to the customer by their chosen sexuality and name? We are of course happy to provide help and support on this. If however you do not wish to do this, we will respect your decision and your right to leave the contract.”


The claimant responded explaining his position that:


“I am a Christian, and in good conscience I cannot do what the [first respondent] are requiring of me.”


The claimant refused to call transgender people by their preferred pronoun or gender.


On 27 June 2018, Mr Owen wrote to the claimant acknowledging his email and that he would not be able to perform as an HDA with the second respondent on behalf of the first respondent. He thanked the claimant for his work and wished him the best for the future. The claimant responded to Mr Owen, stating that he had not resigned but had been sacked and commenting on what he considered the consequences of that were for the nation. He did not seek to raise an appeal or grievance.


Belief


The claimant is a Christian. It was common ground before the ET that Christianity is a protected characteristic.


However, in addition he also holds the following beliefs or lack of belief:


a. in the truth of Genesis 1:27, that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful (“belief in Genesis 1:27”);


b. a lack of belief in “Transgenderism” and “gender fluidity”, such that he does not believe:


i. a person can change sex/gender,


ii. that “impersonating” the opposite sex may be beneficial for a person’s welfare, or


iii. that society should accommodate/encourage such “impersonation” (together, “lack of belief in transgenderism”) and,


c. a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex (“conscientious objection to transgenderism”).


Having started employment as an HDA, carrying out assessments on behalf of the first respondent in relation to claimants for disability-related benefits, during his induction training, the claimant explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users.


This conflicted with the respondents’ policies and attempts were made to clarify the claimant’s position to see if his beliefs could be accommodated; ultimately the claimant left his employment and brought proceedings in the Employment Tribunal (ET) relying on the protected characteristic of religion or belief and claiming direct discrimination, harassment and indirect discrimination.


It was the evidence of Mrs Harrison, clinical lead at the Five Ways assessment centre, that if a transgender claimant was not acknowledged in their preferred way, by using their preferred pronoun and title, that could be detrimental to their mental health. It was also the evidence of Dr Ahmed, clinical lead on the induction training for HDAs, that transgender claimants were often unhappy about the way society had treated them and he considered that if one HDA sought to pass a service user to another HDA, having discovered that person was transgender, then, however sensitively this was handled, the service user would be offended because they would see this as demonstrating the same lack of understanding with which they felt they had been treated by society. A specific example was provided by Mrs Harrison relating to a transgender service user the previous year, whose gender history had been incorrectly relayed and to whom an apology had been provided. (para 11).


Employment Tribunal Decision


Although accepting that Christianity was a protected characteristic, the ET found that the claimant’s particular beliefs did not meet the Grainger criteria (Grainger plc v Nicholson [2010] ICR 360, EAT) to fall under s.10 Equality Act 2010 (EqA):


- beliefs (b)(ii) and (iii) and (c) did not meet Grainger (ii), (iii) and (iv) and

- none of the claimant’s beliefs (a)-(c) satisfied Grainger (v).


Even if his beliefs did amount to a protected characteristic for the purposes of the Equality Act 2010 (EqA), however, the ET went on to find, in the alternative, that he had not suffered the acts of less favourable treatment/harassment complained of and that he had not suffered direct discrimination or harassment.


The ET further held that the provisions, criteria and practices (PCPs) applied (to use service users’ preferred pronouns and to confirm a willingness to adhere to that policy) were necessary and proportionate means of achieving the respondents’ legitimate aims (to ensure transgender service users were treated with respect and in accordance with their rights under the EqA, and to provide a service that promoted equal opportunities). The claimant appealed.


Employment Appeal Tribunal (EAT) Decision


The new president of the tribunal, the honourable Mrs Justice Eady DBE, sitting with panel members, dismissed the appeal.


It was not in dispute that the claimant’s Christianity was a protected characteristic under the EqA but his case depended upon his demonstrating that his specific beliefs, or lack of belief, (a)-(c) fell within section 10 EqA; the ET did not err in focusing on the case before it.


Given that the claimant’s statements of belief at (b)(ii) and (iii) and (c) related to how society should treat those who present other than in conformity to their natal sex, the ET had erred in finding these did not relate to weighty and substantial aspects of human life and behaviour (Grainger (iii)).


It had also erred in failing to engage with the claimant’s case regarding the matters at (b) as one of lack of belief, which would fall to be protected under the EqA irrespective of the Grainger criteria (Forstater paragraph 106 applied).


In any event, the progressively narrow way the claimant’s beliefs were defined meant the ET was entitled to find that the matters at (b)(ii) and (iii) and (c) lacked the necessary cogency, seriousness, cohesion and importance for Grainger (iv), although it had been wrong to find these were merely opinions based on the information available (Grainger (ii)) when the statements were extrapolations from the claimant’s belief (a) and were properly to be viewed as manifestations of that belief.


This means that the EAT agreed that matters at (b)(ii) and (iii) and (c) – notably, that (b)(ii) “impersonating” the opposite sex may be beneficial for a person’s welfare (b)(iii) society should accommodate/encourage such “impersonation” and (c) a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex – failed to pass Grainger (iv) and were thus not protected beliefs.


More generally, the ET had erred in its approach to the question of whether the beliefs were worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others (Grainger (v)): the ET had wrongly considered the claimant’s beliefs relative to his particular employment; had erroneously assumed they must give rise to unlawful discrimination or harassment; had focused on the potential manifestation of the claimant’s beliefs instead of the beliefs themselves, and had applied too high a threshold (Forstater applied).


Notwithstanding its findings on belief, in the alternative, the ET had appropriately gone on to consider each of the claimant’s claims on the merits; those alternative findings were not tainted by the ET’s approach to the question of philosophical belief. The claimant’s grounds of appeal had not included any separate points of challenge to the ET’s rejection of his claims of direct discrimination and harassment but he had impermissibly sought to take objections to the ET’s conclusions on these claims in argument. Those objections were, in any event, without merit:


(1) the ET had found as a fact that the claimant had not suffered the acts of less favourable treatment/harassment complained of;


(2) it had permissibly found the claimant’s beliefs were not the reason for the respondents’ conduct;


(3) it had been entitled to draw a distinction between the claimant’s beliefs and the way he wished to manifest those beliefs (Page v NHS applied); and


(4) it was satisfied that the relevant conduct had neither the purpose nor effect required to amount to harassment under section 26 EqA.


As for the ET’s findings on indirect discrimination, on the issue of group disadvantage, as the claimant had accepted that his particular beliefs were not shared by all Christians, there could be no objection to the ET’s conclusion in this regard.


On justification, the claimant had neither challenged the ET’s finding that no penalty had been applied by the respondents (the claimant’s third PCP), nor its acceptance of the legitimate aims relied on.


In finding that the PCPs that had been applied were necessary and proportionate means of achieving those aims, the ET had properly taken account of the relevant context and had carefully evaluated the respondents’ concerns; it had been entitled to find there were particular sensitivities arising from the face-to-face interactions the claimant would have with service users as part of his role but had also accepted that the respondents were seeking to clarify the claimant’s position and to accommodate his beliefs.


In finding, however, that there were no practical options that would allow for the claimant’s manifestation of his beliefs in his role in that workplace, the ET noted that no further alternatives had been identified by the claimant. That did not amount to the imposition of a burden of proof on the claimant, the ET was merely identifying the lack of evidential challenge to the respondents’ case (paragraph 47 Essop v Home Office applied) and the claimant could not avoid that difficulty by seeking to reinstate on appeal a point he had not pursued before the ET.


More generally, the ET did not lose sight of the potential impact of the PCPs on the claimant but was entitled to keep in mind the limited nature of the intrusion (no penalty having been applied by the respondents, who were seeking to accommodate the claimant).


Given the particular context, it could not be said that the ET had erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the respondents.


Comment


Whilst some of the beliefs were found to be protected[1] others were not protected.[2]


Crucially, none of the treatment by the Respondents was because of these beliefs. A finding of gender critical belief as protected does not necessarily mean a tribunal will find that the treatment was because of that belief (for direct discrimination and harassment), see paras 124-128.


On the matter of indirect discrimination, this was also unsuccessful for the claimant. The trans users of the service were taken into account when considering proportionality:


“138…Critically evaluating the reasoning in this case (as we are required to do), we cannot see that the ET erred in concluding that the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals and, in consequence, to the respondents. That was a conclusion reached by the ET after considering both the evidence adduced by the claimant relating to the views of Christians more generally (the publications from the Evangelical Alliance and the Christian Medical Fellowship) and the guidance provided by the GMC (see the references at paragraphs 38 and 42 above). Having regard to the particular factual context, this is not a case where it can be said that the balance struck by the ET was wrong. We accordingly dismiss the appeal against the ET’s finding on indirect discrimination.”


It is a shame that ‘lack of belief in transgenderism’ seems to have been held to pass the Grainger criteria when, for example, in Elan-Cane it was restated that one’s gender identity remains central to their Article 8 Convention rights (see para 36 of that judgment). How then a lack of belief in transgenderism cannot come into conflict with a transgender person’s identity and Article 8 rights seems inconceivable.


A note on the Forstater discussion


This judgment heavily cites Forstater, which ruled on solely belief (and not manifestation), whereas this judgment deals with both belief and manifestation (i.e. how trans people are treated generally).


The discussion of Forstater underlines how strange that ruling was, and how the divorce between belief and manifestation can be incredibly artificial.


The EAT in Forstater attempted to disentangle belief (as protected) from manifestation (which may not be). However, it then draws on R (Williamson) as set out by the EAT in this case:


“83. Further, referring back to Burton P’s reliance on paragraph 23 R (Williamson) in the formulation of the Grainger criteria, the EAT in Forstater noted that, in considering what beliefs might fall outside the protection of article 9, Lord Nicholls had opined that “Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection,”. The EAT reasoned:


“61. The reference there to a belief involving ‘torture or inhuman punishment’ is consistent with the principle that only the gravest violations of Convention principles should be denied protection. Such violations go far beyond what might be regarded as potentially justifiable interference with a right: they seek to destroy such rights.”


[…]


“77. … at this preliminary stage of assessing whether the belief even qualifies for protection, manifestation can be no more than a part of the analysis (assuming that there is any manifestation at all) and should be considered only in determining whether the belief meets the threshold requirements in general. It is also right to note that an approach that places the focus on manifestation might lead the Tribunal to consider whether a particular expression or mode of expression of the belief is protected, rather than concentrating on the belief in general and assessing whether it meets the Grainger criteria.


78. That approach follows from the language of s.10, EqA which, as we have said, is concerned only with whether a person has the protected characteristic by being of the religion or belief in question, and not with whether a person does anything pursuant to that religion or belief.” […]


87. The EAT subsequently returned to this point, postulating a belief that would be likely to fall outside Grainger (v) (with which Ms Forstater’s belief was not comparable):


“100. Some beliefs, for example a belief that all non-white people should be forcibly deported for the good of the nation, are such that any manifestation of them would be highly likely to espouse hatred and incitement to violence. In such cases, it would be open to the Tribunal to say that the belief fails to satisfy Grainger V. However, the rationale for doing so would be that it is the kind of case to which Article 17 might be applied because of the inevitability that the rights of others would be destroyed. The Claimant’s belief is not comparable.””


Part of the fallacy here is that Ms Forstater’s alleged protected belief was that ‘sex is immutable’. However, in reality the belief goes further than that and seeks to, it seems, erase trans rights. The belief should really have read something like ‘sex is immutable and trans people do not/should not exist’.


The manifestation of Forstater’s views were seen in various tweets and could be said on one view to incite hatred/violence, directly or indirectly, towards trans people. In such a way, the manifestation of her views are similar to the xenophobic views cited at para 100 above – i.e. a belief that all non-white people should be forcibly deported for the good of the nation would not satisfy Grainger V, nor would a belief in the erasure of trans people.


It is unfortunate that the EAT in Forstater allowed the truncated version of Forstater’s belief ‘sex is immutable’ to be put in a theoretical bubble without realising what the subtext of that belief is, and indeed its material reality/manifestation, whereby trans people are disbelieved or harassed on a daily basis.


The judgment in Mackereth, however, sets out the law in a fairly unsurprising way. Even if a person has ‘gender critical’ beliefs, it must be shown they were treated because of these beliefs but more importantly if these beliefs have a manifestation that is harmful to trans people, then it is unlikely for a ‘gender critical’ claimant to be successful.



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[1] (a) his belief in Genesis 1:27 did not amount to a protected characteristic for the purpose of sections 4 and 10 EqA; and the claimant’s lack of belief (b)(i) that it is possible for a person to change their sex/gender at will [2] (b)(ii) “impersonating” the opposite sex may be beneficial for a person’s welfare (b)(iii) society should accommodate/encourage such “impersonation” and (c) a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex.