Children’s author expresses view on equality law.

Sir Keir Starmer has finally come off the fence on trans rights. He recently stated that

“A woman is a female adult and, in addition to that, trans women are women, and that is not just my view – that is actually the law” adding “It has been the law through the combined effects of the 2004 [Gender Recognition] Act and the 2010 [Equality] Act.” This is to be applauded.

However, well-known legal academic and specialist in this field we mean children's author with a BA in French, JK Rowling, stated in a tweet that “Keir Starmer publicly misrepresents equalities law”, failing to provide any justification. This children’s author’s view about the position taken by an ex-barrister who was previously Director of Public Prosecutions and Head of the CPS was obviously deemed newsworthy by not just the Daily Mail and Daily Mirror, but the Times, Guardian, Telegraph, Independent, Evening Standard and Sky News.

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Hold the front page. No wait, please don’t, actually. Because as you might expect, Keir Starmer was absolutely correct. Trans women are recognised as women by the executive and in law; the extent of the recognition depends on the stage of their transition and whether they have satisfied certain formal requirements.

• A trans woman who has not yet begun her transition can still be protected from discriminatory dismissal [Equality Act 2010 (‘EA 2010’)].

• A trans woman can change her name merely by adopting a new name and requiring everyone to use it.

• A trans woman who is living as a woman can declare she is a woman in the Scottish Census [Fair Play for Women v The Register General for Scotland [2022] CSIH 7].

• A trans woman with evidence of her change of name (e.g., deed of change of name, statutory declaration) can change her sex on her driving licence.

• A trans woman with a letter from her GP can change her sex on her passport.

• A trans woman who has made sufficient progress in her transition cannot be excluded from female-only spaces in the course of her employment (and by extension from services to the public as well) [EA 2010, Croft v Royal Mail [2003] EWCA Civ 1045, Equality and Human Right’s Commission’s Services, Public Functions and Associations Statutory Code of Practice as confirmed by the High Court in AEA v EHRC [2021] EWHC 1623 (Admin)].

• A trans woman who has made a complete transition or has a Gender Recognition Certificate (‘GRC’) will be viewed as female for the purpose of female-only roles [EA 2010, Gender Recognition Act 2004 (‘GRA 2004’), A v Chief Constable of West Yorkshire Police [2004] UKHL 21].

• A trans woman with a GRC can change the sex and name on her birth certificate [GRA 2004].

Well done to Keir Starmer for knowing these basic facts. It seems like passing those law exams and becoming one of the most prominent lawyers of his generation wasn’t all in vain. Though, obviously, he’s not yet managed to write any children’s books.

We’ll say it again: The Scottish Government MUST take the FWS decision to the UK Supreme Court.

The potential consequences of letting this ruling stand could be serious indeed.

In our previous blog on the recent For Women Scotland v Lord Advocate [2022] CSIH 4 (‘FWS’) judgment we argued that if the Scottish Government has the power to reform the Gender Recognition Act 2004 (‘GRA’) in Scotland, then it also has the power to decide who falls into the protected characteristic of woman [1] for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

But (as any maths or philosophy professors following along will confirm) it is logical that if A implies B, then not A implies not B [2]. This seems to be the stance that Scottish lawyer and former President of the Scottish Law Society, Ian Smart, has argued by saying that the Inner House judgment in effect means that it is ‘outwith’ (i.e. beyond) the legislative competence of the Scottish Government to enact GRA reform in Scotland. We can’t fault his logical inference, but we do not accept his premises. We believe the Scottish government does have the power to modify the GRA and hence that the decision in FWS was wrong.

If Smart is right, the 97% of trans people in Scotland without a GRC will be discouraged from applying for non-executive roles on Public Sector Boards due to fear of outing themselves. Not great, and certainly unfair, but not perhaps of itself a life changer for many (apart from the legal precedent it might signal). But, alas, there is more:

• The Scottish government’s proposed GRA reforms will be stopped in its tracks.

• The ‘spousal veto’ may have to be restored in Scotland as the legislation that removed it in Scotland was passed by the Scottish Parliament. [3]

Six years of media hatred on both sides of the border will have done its work. The upshot will be no improvement in the legal rights of trans people in Scotland, as in England, and the ever-present spectre of being banned from single and separate sex spaces.

The next move from the ‘Gender Critical’ activists seems obvious; to bring an application for Judicial Review claiming that the Scottish Government went beyond its powers in removing the ‘spousal veto’ from the GRA in Scotland. If that is successful, it’s not impossible that some Scottish trans people might be stripped of their GRCs.

To stop this, the Scottish Government needs to appeal the decision in FWS to the UK Supreme Court and to win. As the Scottish Government has not yet announced its intention to appeal, we believe that it is essential for every trans supporting group who has the ear of the Scottish Government to make clear the potentially dire consequences of inaction in this regard.

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[1] But not the power to change the protected characteristic. A change to the protected characteristic could include changing it to a three-way male, female, non-binary characteristic.

[2] By contraposition. See https://en.wikipedia.org/wiki/Contraposition

[3] See for example the Civil Partnership (Scotland) Act 2020 sched. 2 para. 5.

The pieces of the EHRC jigsaw come together and it’s worse than we thought.

The final piece in the EHRC’s attempted plan to ban trans people without GRCs from separate sex facilities that match their acquired gender emerged on Monday. Luckily, it seems to have stalled, at least for now.

In July last year, fearing that the EHRC had adopted legal positions allowing blanket discrimination against trans people, we wrote to challenge them. The body of the EHRC's letter back to us clearly confirmed our worst suspicions, but the Joint Acting Chief Executive gave us a written assurance that blanket discrimination against trans people was not allowed. She quoted the part of EHRC's Services Code that requires any discrimination against trans people to "be applied as restrictively as possible" and on a "case-by-case basis". She concluded, "Therefore we disagree that we are making it possible for an organisation to post signs saying ‘No trans people without a GRC’ as you suggest."

We believe that the EHRC was gaslighting us. As has now been revealed by the i's leak of a letter from Liz Truss to Baroness Falkner, within 6 months of their letter to us, the Chair of the EHRC was informing the government of its intentions to modify the Services Code, by changing the statutory guidance, for the first time since it had been laid before Parliament 11 years ago. This is significant. Some commentators, whilst speculating that the EHRC was plotting something grim, believed that it would not try to go as far as revising the statutory guidance.

When Vice claimed that the EHRC was planning to issue guidance allowing blanket discrimination against trans people, some felt that the sources on which journalist Ben Hunte was drawing might have been exaggerating (though not us, given that we had had a letter from them much of which had said - despite assurances - that this was literally what the EHRC was minded to do). And from what we have seen now, it turns out that the EHRC had put in place all the legal pieces, from the positions it adopted to modifying the Services Code, to allow this to happen. They were just waiting for the green light from the government.

The only positive that comes out of this ghastly tale is the government’s seeming reaction; giving Baroness Falkner notice that it is not going along with the EHRC’s plans. The government, said Liz Truss, “has no interest in changing the current situation where transgender people are able to use facilities of their chosen gender”.

What’s behind Truss’s stance? We could speculate, but we won’t. Other leaks from the EHRC have suggested that the government has had its fingerprints all over the shameful quashing of guidance for schools on trans kids. If that’s true, the government has unethically damaged the neutrality of the EHRC. On the question of single-sex facilities though, the government seems to have done the right thing. It is required by law to either accept or reject EHRC draft statutory guidance [s. 14(7)(a) EA 2006] and it looks to have chosen the latter route.

The EHRC has been asked to privately “engage” with and “reassure LBGT groups on these issues”. As yet, we and others remain distinctly unreassured. Our breath is not held as we wait for the phone to ring.