The EHRC Single and Separate Sex Spaces Guidance: A Train Wreck.

Regular readers will know what we at TLP think about the EHRC's recent non-statutory guidance on single and separate sex spaces and how its enthusiasm for pre-emptive blanket bans of trans people are reminiscent of 'bathroom bills' much loved by bigoted legislators in some US states. Here, barrister Robin Moira White (co-author of ‘A Practical Guide to Transgender Law’) goes into detail on why this guidance is misconceived, impractical and unlawful and explains why it must be ignored in favour of the EHRC's own Statutory Code and The Equality Act, 2010.

Essential reading for any Service Provider who wishes to avoid legal risk.

Briefing Note - New EHRC Guidance on separate and single sex services. 22.5.16

.pdf

Download PDF • 1.43MB

A truly grim night at Matrix Chambers

A slightly late response (due to illness) to an event that took place last week at Matrix Chambers, featuring a range of barristers and others discussing the recent EHRC non-statutory guidance on single-sex spaces. We were originally asked to speak at this seminar after publishing this but whilst we were framing our reply (and about 24 hours later), we were told that our place had been taken by barrister, Dan Squires, QC. Robin White did speak alongside others, including Karon Monaghan QC (the event organiser), Akua Reindorf (EHRC Commissioner) and Pragna Patel (founding member of the Southall Black Sisters). In the audience were senior representatives of GC and anti-trans organisations including the EHRC, Legal Feminist and Sex Matters.

Robin White has described the EHRC guidance as a “train wreck”. It certainly is, and so too were many of the arguments put that night, with only Robin advancing a view that in any sense supported the basic human or legal rights of trans people. None of her points received an adequate (or even any) answer. The tone of most of the evening was brutally hostile to the trans community. Reductionist and legally meaningless language around ‘biology’ was ever-present, trans women were referred to as “trans-identified males” at one point, and even Karon Monaghan was unable to explain why her own advice to The Women’s and Equalities Committee on these matters in 2018 now seems so wrong that she has reversed it completely, despite there being no material change in the law or the situation.

On a human level, the most chilling part of the evening for the small TLP team – as far as we know the only trans people in the audience – was to have it confirmed, directly, by both Reindorf and Monaghan that as far as they were concerned, blanket, pre-emptive, bans of trans women from women’s spaces, such as those mentioned in the examples (as usual trans men barely featured through the discussion) were in many circumstances legally permissible and a ‘proportionate means of achieving a legitimate aim’. The surreal feel of it all was only deepened by the ‘faux-reasonable’ manner in which such views were articulated from the platform to the TLP team (both of whom would be personally affected by this ban and potentially denied access to basic services that they had each been using for about 15 years without issue). Indeed, the debate maintained this tone all night, with light-hearted exchanges between the dominant voices on the panel whilst trans women were reduced to inhuman, objectified legal artifacts whose welfare counted for little and who at points came close to being monstered. Sitting in an audience that contained representatives of a number of deeply anti-trans organisations, including the EHRC, it felt at best like there had been some sort of terrible mix-up with the guest list, and at points that we had been given tickets to spectate at our own execution. Robin White did well, but it felt like her presence was tokenistic and there was only one direction this ‘debate’ was ever going to go. Some minutes before the end, one of our team walked out. There's only so much of this stuff one can take.

With respect to some of the specific legal questions raised, we detected at least four areas where we believe speakers made glaring errors and we hope to come back to this soon. In the meantime, we repeat our view that all who are faced with questions in this area should ignore the EHRC’s unlawful non-statutory guidance. Or view is to use the Statutory Code, because if you do not, there may be legal consequences.

As a final footnote on the evening, Akua Reindorf said that the EHRC plans to work with the government to have the Statutory Code itself reworked during 2022. This suggests to us that the plan to do this must have been in place well before the non-statutory guidance was produced, and it tacitly indicates that the intention was never to resolve the obvious inconsistencies between the two forms of guidance by being open to changing the recent non-statutory material after the row it has caused, but by subsequently altering the Statutory Code itself. The train wreck isn’t, as they say, a ‘bug in the system’, it’s a feature – we believe that the EHRC knew well that the non-statutory guidance was deeply problematic (in fact they wrote to us in 2021 and stated in their letter that the blanket bans they now believe to be lawful were unlawful), but they did it anyway in order to push the legal Overton window in its favoured direction, with a view to tidying up the mess by overhauling the Statutory Code later. In essence, they potentially engineered this problem in order to press for a resolution later that would be even more resolutely transphobic.

It’s worth remembering that revisions to the Statutory Code must be approved by Parliament and are laid before the latter by the government (though not necessarily debated) for a period of 40 days before coming into effect. Whether the government has the appetite to do this, given its dislike of Statutory guidance generally, is another matter. But the EHRC has now created a problem that it can, disingenuously, say needs fixing, the government has an enormous majority to wave the changes through and who knows how the political climate will develop in the next 6 months. Given Boris Johnson's and Sajid Javid's hostility towards the trans community, we have to be prepared for the worst.

It’s distressing that in modern Britain we have to keep writing sentences like that. Overall, this tweet seems to sum things up...

Coming soon (we hope)…

A point of view on the Home Office’s recent instruction to police forces to collect the ‘sex assigned at birth’ from all trans perpetrators or victims of crime (except those with a Gender Recognition Certificate). There are numerous sinister and deeply problematic legal questions arising from this policy, including the chilling effect on the likelihood of trans people reporting crime, and we’ll be outlining them.

Write for us, work with us

Trans Legal Project was founded by two trans people who wanted to respond to the cascade of legal hostility towards trans people that was gathering pace in 2021. It is an entirely voluntary network comprised of barristers, solicitors, law students and legal academics. The network includes cisgender and trans or non-binary individuals. All of us care about the relentless and pernicious attacks on trans people in the UK, led by bad-faith actors who often frame our very existence as an attack on cisgender women and who are now working not simply to prevent trans and non-binary people achieve greater legal equality in society but to have what rights we have earned removed.

We are always interested in hearing from anyone who feels that they have some time to help – particularly if you are a practicing barrister or solicitor with an interest, or expertise, in equalities law. If you care about the decimation that some are attempting to visit on trans people’s rights, and don’t simply want to be a spectator, please come forward. You can email us at info@translegalproject.org or if we follow each other on Twitter, DM us. ******** Edit: We have adjusted the wording in paragraph 3 to be fully clear about the specifics of the discussion.

In the guidance, the suggested answer to every example given in which the needs of a trans woman and another service user (the examples all use cisgender women) are seen to conflict is the blanket banning of trans women. On the night it was admitted that the guidance was not legal advice, could be no more than general, couldn't cover every nuance, and that there may be situations in which a blanket ban would be unlawful. There is some reference in the guidance itself for service users to be alive to the possibility of diverging from their own policy (as shaped by the examples the EHRC gives) but this is not foregrounded and we believe is included as a legal get-out clause.

Footnote: (added May 4, 2022). We understand that the EHRC has denied that at this event a Commissioner said that blanket bans of trans people from single-sex spaces were lawful. This contradicts our recollection of events. We invite the EHRC to confirm that they are not lawful and to explain why each of the worked examples presented on a page of their website (at the time of writing which seems to have been taken down) suggests that they are. Obviously, we would be very happy to review a transcript or recording of the event on this matter.

Sanchez loses against University of Bristol: Some thoughts.

Raquel Maria Rosario Sanchez v. University of Bristol is one of a slew of recent cases where 'gender-critical' individuals have brought claims alleging that they have been unjustly treated by institutions and organisations (so the narrative goes, who have been ‘captured’ by pro-transgender rights ‘ideology’) as a result of their views. However, last week’s judgment in this case revealed the true nature of Ms Sanchez’ claim against the University of Bristol (the “University”); that she was dissatisfied with the University’s reasonable (if not always particularly efficient) response to her complaints about other members of the university community, and so sought to obtain damages under a number of causes of action – all of which were rejected.

Background

The claims stem from objections to Ms Sanchez’s chairing of a gender-critical event, where she was billed as a PhD student of the University’s Gender and Violence Research Centre. Students at the University were concerned that the reference to her role at the research centre suggested that the views of Ms Sanchez and the organisers, the campaigning group Woman’s Place UK (“WPUK”), were endorsed by the University and protested. Ms Sanchez complained to the University about an open letter criticising the event; a critical motion subsequently debated by the Bristol Students’ Union (over which the University had no control); and critical, sometimes hostile, social media posts. In particular, the actions of a fellow PhD student (“AA”) were singled out. AA was later subject to disciplinary proceedings, which were ultimately abandoned – the conduct of those proceedings was also the subject of Ms Sanchez’ claims.

Breach of Contract and Negligence

Although Ms Sanchez did bring claims under the Equality Act 2010 (which related more to her gender-critical beliefs), the majority of the claims revolved around her view that the University had failed in its obligations to her as a PhD student, as a breach of contract and breaching a duty of care towards her. Essentially, Ms Sanchez argued that the University’s failure to take robust action to “protect” her from pro-trans rights opposition to her views entitled her to damages - for instance, by failing to take action against students for social media posts; failing to prevent the Bristol Students’ Union debate; or (impliedly) by failing to sanction the student, AA, whom Ms Sanchez identified as a ringleader. Ms Sanchez also took issue with the University issuing an open statement affirming the importance of freedom of speech (to all members of the university community), which she seems to have considered insufficient.

The Court rejected these arguments on the basis that no such duty of care was owed to Ms Sanchez by the University - and, even if there was such a duty, its actions (for instance, starting disciplinary proceedings against the student, AA) complied with that hypothetical duty. Whilst the disciplinary proceedings were certainly protracted, and communication with Ms Sanchez was at times poor, the conduct of the proceedings was sound. It is notable that Ms Sanchez did not seek to overturn the decision to terminate the proceedings against AA, but instead tried to circumvent it by erroneously claiming that no decision had been reached. Ms Sanchez also seemed to argue that the breach of contract was similarly based on this hypothetical duty of care which was implied into the contract between her and the University; this argument was, necessarily, also rejected.

One of Ms Sanchez’ more headline-grabbing allegations was that the University had orchestrated a suspension of her PhD course, ‘tricking‘ her in order to invalidate her scholarship and force her to leave. The Court found no basis to support her belief that the suspension was punitive or intended to trick her, since she had agreed to it as the only viable option to preserve her scholarship due to the disruption she said that this saga had caused to her studies. The Court concluded, as a general observation, that,

“Unfortunately [Ms Sanchez’] evidence caused me to conclude that she was so convinced that the [University] was determined to and did discriminate against her…that she sought to rationalise all things done or not done by the [University] as evidence of that discrimination…”[1]

Equality Act 2010

Contrary to how it was portrayed, notably on Ms Sanchez’ own crowd-funding page with its hostile fixation on trans people and their allies, this case was fundamentally concerned with the conduct of the University in handling a complaint from an aggrieved student. This would explain why her claims under the Equality Act 2010 (the “Act”) come across as afterthoughts - and, certainly, occupy very limited space in the judgment.

The Court found that Ms Sanchez had failed to prove that the University had had (as per the Act) a policy, criterion or practice of, “not sanctioning students who rely on “trans rights” activism to justify their conduct…” Thus, her claim for indirect sex discrimination was rejected. Similarly, in pursuit of her concurrent claims for victimisation and harassment, Ms Sanchez’ assertion that she suffered a detriment due to undertaking a ‘protected act’ was rejected on the basis that almost none of the issues that she identified could qualify as protected acts – for instance, her attending the WPUK event was not a protected act. In relation to her actual complaint to the University, which could have constituted a protected act, the Court found that she had not suffered a detriment in a way that would activate the protections under the Act (e.g. not getting the conclusion to the disciplinary proceedings that she wanted is not a detriment for the purposes of the Act).

Some Observations

This case is one of several recent ‘lightning rod’ cases to have attracted considerable media attention (and considerable funding from those with gender-critical sympathies). Although the judge, HHJ Ralton, made some questionable comments about the supposed conflict between the “female feminist community” and the “Transgender community” - including repeating gender-critical talking points wholesale and failing to recognise that trans individuals and their allies are just as likely to be subjected to behaviour that crosses the line that he draws between outrage and violence – he emphasised that the case was focused solely on the University’s management of Ms Sanchez’ complaints.

With this in mind, this case is something of a red herring for both the gender-critical movement and for the transgender community and its allies. Ms Sanchez’ comprehensive loss does not move the needle on the gender-critical movement’s attempts to deprive the transgender community of its rights, nor on the efforts of the transgender community and its allies to safeguard those rights (save insofar as it has deprived gender-critical campaigners of a new talking point).

However, the same cannot be said of other cases making their way through the courts. With judgment in Maya Forstater’s Employment Tribunal case outstanding and Allison Bailey’s Employment Tribunal case against Garden Court Chambers and Stonewall commencing this week, there are real giants to overcome beyond distracting ‘windmill’ cases like this one.

[1] Para. 115