The Women and Equalities Committee Report on GRA Reform.

A Tory-dominated House of Commons Committee trashes its own government

We have now looked through today's report by The Women and Equalities Committee

Into the reform of the Gender Recognition Act. It’s a very useful review, with some important suggestions that we certainly support, though it falls short in other areas.

The first questions are of course Will it make any difference? To anything? It's hard to say. The Report is unflinching in its criticism of government, especially the Government Equalities Office and its senior ministers, who effectively refused to cooperate with the Committee – a characteristic of a regime that has no interest in scrutiny by Parliament. It also attacks the Equalities and Human Rights Commission for failing in its duty to lead and to clarify and for the attitude it took to the Committee. It lays bare the reality that there is little interest in government now to support trans rights. At best the ministerial position seems to be to try and avoid the issue, whilst allowing people with opposing views to rip each other to pieces in the public domain and the toxically anti-transgender British press to tear the trans community down, so it can then pick over the wreckage for political gain.

But there are reasons to care. It's an important reference document, developed after extensive evidence taking. In addition, the Cass Review into the future of the Tavistock Gender Identity Clinic continues. The report's strong support for action to deal with the staggering backlog of referrals, across the whole country, will make it harder for opponents to get the Tavistock GIC crippled or even closed. Likewise, GRA reform is very much on the agenda still in Scotland (where these matters are devolved) and whilst this report covers England and Wales only, its conclusions will be read in Holyrood too.

Amongst the main conclusions, the Committee applauds the government's decision to digitize the GRC process (something that, frankly, it should have done years ago) and the cut in the application fee to £5, though it calls these tokenistic moves, which they are. It calls out the government on its claim to be creating 3 new clinics in response to the GRA consultation, when these clinics are small pilots, won’t make any real difference to staggering wait times and were all announced by the NHS before the process started.

It attacks the government for burying the LGBT Action Plan - now effectively dead. We’d personally like to pay tribute to trans members of the government’s LGBT Advisory Group, including James Morton and Jane Ozanne, who clung on as long as possible to keep it on life support, before acknowledging that the government had pulled the plug out.

On GRA reform the Committee calls for the removal of the need for a diagnosis of Gender Dysphoria as a precursor to applying for a Gender Recognition Certificate – a key part of the pathologisation of trans people. Good. Likewise, it calls for an end to the grim ‘Real-Life Test’ of two years before a candidate can qualify to apply for a GRC. We are glad to see the rejection of extreme views put to the committee by, for example, FiLiA, on this.

The Committee goes on to call for the government to bring forward new proposals for Self-ID [4], which can include strong legal safeguards using a Statutory Declaration. This works well in Ireland. Some submissions were made to the Committee – reflected in the Report – that suggest the current wording of the Statutory Declaration (the ‘sign in blood’ clause that implies that you have to live out your days in your acquired gender) should be changed to remove this seemingly onerous aspect. In our view, this is actually a legal red herring. The document says that you must intend to live in your acquired gender for the rest of your life. If you do change your mind, you are not breaking the law if you detransition, though it may be useful to be clearer to applicants on this, using accompanying notes as they go through the process. You do of course still need to mean it when you sign; a court's going to want evidence of that in any case of malfeasance.

We completely support the recommendation to remove the spousal veto. It’s long been a legal outrage. It was only added after the Same-Sex Marriage Act passed in 2013, prior to which legal transition had to be preceded by divorce. It has no place in a system in which people have the right to live legally in their authentic gender and since its removal in Scotland, seven years ago, the world has not caved in, north of the border.

We believe the Committee is wrong to support the maintenance of 18 as the age at which individuals should be able to gain a GRC. It should be 16. Young people who have fully socially transitioned should be allowed to live legally in their authentic gender. Equally, it can make a big difference for a young person to be able to enter the workplace with the correct documents, rather than having to have them changed later.

On the manufactured ‘controversy’ of single-sex spaces, it’s unfortunate that almost the entire section of the report is taken up by anti-trans voices, especially legal professionals who made extreme and unsupported arguments that they would never make on behalf of clients in court. There was no contribution from the trans community at all here. The inflation of this issue is in line with the moral panic that has been dead-centre of attacks on the trans community for some time and alas, in the UK, all this has become a grotesque battleground. For clarity, the Committee calls for worked up examples from the EHRC of situations in which it is legitimate to exclude trans people from single/separate sex spaces. We believe that if this route is to be taken then guidance must also include examples of when it is not legitimate to exclude trans people – in order to present a clear and balanced picture. Overall, however, we are fearful that this process will be part of a renewed attempt by groups hostile to trans women to redefine exceptional circumstances in ways that aren’t really exceptional at all. We believe that opponents of trans rights are pressing the EHRC to frame this guidance to be more hostile to trans women than previously, with a view to then being able to encourage its regular use by service or facility owners against trans women, in changing rooms, toilets or refuges etc.

The Committee goes on to get involved in the question of trans prisoners; unhelpfully, in our view. The prison service should focus on risk assessing each prisoner properly and making the right decisions accordingly [1]. It doesn’t need new laws to identify trans prisoners as a separate class, for unique treatment, to do so. It just needs to do what it is supposed to do anyway (if it isn’t, then it should be taken to task over that) and the exceptions within the Equality Act are perfectly clear that it can do so. Further, a decent lawyer could have told them that they were stepping into Human Rights Act territory here [2], with a whole set of implications (notwithstanding Dominic Raab’s avowed intention of destroying the HRA).

One other thing, since it’s come up here. The Report talks about how some contributors who gave evidence talked of exemptions and others of exceptions to The Equality Act 2010 that can permit discrimination against trans people. The Report text conflates these terms to suggest that they mean the same thing. They do not. Opponents of trans rights often use the term exemptions – even though it is not legally correct – because it contains within it no notion of the rarity of the circumstances to which it refers. The word exception does however imply that keeping trans people out of certain spaces is a situation that should be seen as unusual and dependent upon individual circumstances. You might think this is semantics. It isn’t.

There is in the report material around decriminalising the accidental release of a trans person’s gender status once they have a GRC. The Committee calls for this sanction only to be retained in the case of deliberate, pernicious disclosure. The law at the moment is not entirely satisfactory. There are justified concerns that it can currently criminalise people without a mens rea – a very unusual situation. Although exceptional, we support the current law, however, as outing a trans person without their consent can cause irreparable harm.

We are also concerned that a loosening here is being supported by so-called GC activists because it may make the non-consensual outing of trans people (even with a GRC) more commonplace (if it can be presented as simple ‘carelessness’ and with the burden of proof now being placed on showing evidence of malice). Those working to out trans people may find a new law easy to exploit.

On sport, the Committee has effectively walked away. It acknowledges the issue but offers little more. We read some biological essentialism from Sport England and the report then founders on familiar rocks. “We believe it is absolutely essential that the integrity of women’s sport is maintained and not compromised, and that nothing should happen in this space which would undermine that”, it says (p.75) whilst then talking of the need to find ways to facilitate trans people in inclusive spaces. Like what? Either trans women are women, or they are not. In the sporting setting, cisgender women, be they unusually tall, strong or powerful, automatically qualify for acceptance into the category of women, unquestioned. Yet opponents of trans women in women’s sports suggest that a trans woman, irrespective of her height, strength, or power as an individual, should be automatically excluded because she is part of a group categorised (by them) as something other than a woman (whatever her lived experience or legal status). In fact, The Equality Act already in fact allows for something like a blanket ban of trans women in sporting settings (on the grounds of 'fair competition' - though it doesn't attempt to define what that means - or 'safety'). We’d perhaps like to see a sport-by-sport approach, using an 'exceptional circumstances' rule, by which women – trans and cis – should be assumed to be eligible unless they fall outside the boundaries of tailored guidelines (weight, strength, hormone levels, etc) created for each sport. Wherever this ends up, the hints about so-called third spaces being brought up once more (the ridiculous image of the ‘trans athletics meet’ with the three trans women athletes in the county competing against each other comes to mind) are not the answer. This thinking also represents the thin end of a large wedge that uses the same ‘logic’ to remove trans women from changing rooms and toilets etc.

The Committee’s call for the government to get moving on the legal recognition of non-binary identities is welcome. The government should do this. But after the recent Supreme Court ruling against Christie Elan-Kane on this [3], the augurs are alas not good for now.

Overall, it’s a generally useful piece of work by the Committee, we think. It moves things in the right direction, even if it goes off track here and there. It has certainly upset a lot of anti-trans groups and we can expect the usual suspects to be in the bigoted British press to condemn it. Its major contribution is probably to fearlessly return to the case for Self-ID [4], which it more or less supports (along with 70% of those who took part in the consultation which the government then ignored).

The report speaks also about the parlous state of trans healthcare and how much more must be done. We’d 100% agree.

We’re noting from elsewhere in the trans community some hostility to the addition of such a large number of trans-hostile groups as ‘stakeholders’ in the ‘debate’ and in the report itself. Some are likening this to including and then extensively quoting from Britain First in a consultation about the rights of immigrants, or including virulently homophobic hate preachers in one on gay rights. We feel the unease of reading some of these views too. Implying that some of the groups who offered evidence represent the wide opinion of British cisgender women or of British feminism is in our view a pretty bad mistake. But on balance, we support the Committee’s decision to include these views simply because to have not done so would have gifted these groups a chance to claim that they were being ‘canceled’. They certainly weren’t canceled, and it’s good to see that in most aspects extreme anti-trans/GC views didn’t persuade the Committee. The arguments were made and, in most cases, the trans community’s views were held to be the most persuasive.

The most striking thing about the whole report is to us how the political setting in which it is appearing has become unrecognisable since the Conservatives first announced GRA Reform and a consultation on it. This is a Tory-chaired Committee eviscerating a Tory government, and especially two Ministers (one of whom may well be the next Prime Minister), plus a regulatory body set up to guide and explain equality law. Whether the Committee’s conclusions will create any introspection at all at the EHRC or the GEO remains to be seen. They should. ************

[1] This approach was held to be lawful by the High Court in FDJ v Secretary of State for Justice [2021] EWHC 1746 (Admin)

[2] A failure to consider holding a transgender woman with a GRC who is a sex offender in the female estate breaches the HRA. See R v Secretary of State for Justice [2009] EWHC 2220 (Admin)

[3] Elan-Cane, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 56 (15 December 2021)

[4] Our position at TLP is that we’re not big fans of the term Self-ID as it is open to misinterpretation and has been weaponised. We prefer Gender Recognition by Statutory Declaration or Gender Recognition by Legal Declaration

The Bell v Tavistock Appeal Court ruling

Finally, some legal sense.

The Tavistock and Portman NHS Foundation Trust operates the only gender identity service for children in England and Wales. Part of the service involves making referrals, where clinically necessary, for endocrine treatments, specifically puberty blocking drugs and/or cross sex hormones. Referrals are made only when the child has reached at least Tanner Stage 2 in puberty and where there is the consent of both the parent and the child. Even though parents can provide legal consent on behalf of their children [1], by requiring the consent of that child the Tavistock has historically foregrounded the rights of the child, which is to be commended. This approach is also in line with the long-established World Professional Association for Transgender Health (‘WPATH’) Standards of Care [2].

In Bell v Tavistock [3] the claimants, Keira Bell and Mrs A, brought a claim in the High Court for judicial review seeking a declaration that children under the age of 18 are not legally competent to consent to puberty blockers. Despite widespread coverage giving the impression that the claimants were successful in their claim at the High Court of illegality in the Tavistock’s policy or practice, their claim was not in fact successful. However, the High Court did provide both a declaration and guidance, the practical impact of which was that children under the age of 16 should be viewed as unable to provide legal consent to puberty blockers. The legally binding declaration listed eight factors that clinicians must take into account when deciding if a child could consent to puberty blockers (para. 9). Alongside it, the non-legally binding guidance, which covered children of all ages, recommended that a court order should be sought before prescribing puberty blockers (para. 9).

Even though the High Court judgment was stayed, this had an immediate and practical effect. No child has been referred by the Tavistock to endocrine services for puberty blockers since it was issued. We wrote here about both the harm being caused to transgender children by the ruling and the legal problems with it.

The case was recently appealed and we at Trans Legal Project watched the hearings at the Court of Appeal. We were very impressed with the meticulous and forensic way that the judges dissected the High Court decision. They demonstrated a detailed understanding of the legal problems with the earlier decision. Following the hearings, we were optimistic that the ruling would be overturned.

The judgment of the Court of Appeal was released on Friday [4]. The High Court decision (both the declaration and guidance) was overturned in a damning, unanimous, legal opinion from a panel of judges that included the two most senior Court of Appeal judges, Lord Burnett CJ and Sir Geoffrey Vos MR. The court found so many serious errors of law that it did not even find it necessary to see if the original judgment was consistent with the Human Rights Act 1998 (para. 90).

Evidence

The claimants in the original High Court case sought to introduce expert evidence to counter that given by Tavistock and NHS Trusts. Their evidence came from a group from across the world, unrepresentative of wider expert opinion, who disagree with the WPATH position. Most of their evidence was introduced at the last minute (para. 38). Further, the claimants had made no application for permission to rely on the expert evidence that they produced and “[n]one of it complied with the rules regarding expert evidence and a good deal of it [was] argumentative and adversarial” (para. 38). The Tavistock rightly sought to exclude this evidence, but the High Court did not resolve its status as it should have done (para. 38).

Extraordinarily, there was an even more fundamental issue than the fact the claimant’s expert evidence was inadmissible. The Court of Appeal notes that in judicial review proceedings (i.e. the original High Court case), a court will normally accept the evidence of the public authority (para. 22) and will not decide contested issues of fact or expert evidence (para. 62). In law there are exceptions to this principle, but they were determined to not apply to this case (para. 62).

None of this was disputed by the claimants in the Court of Appeal who, bizarrely, then had no choice except to argue that the findings of fact by the High Court had come from the Tavistock’s own evidence (para. 62). But the Court of Appeal noted the High Court had referred to evidence given by the claimant’s experts including Professors Hruz, Levine and Scott (para. 37), indicating use of those opinions in the ruling.

The Court of Appeal highlighted two findings that the High Court had implied from this evidence:

i) that puberty blockers are an “experimental” treatment for gender dysphoria; and

ii) that starting on puberty blockers leads virtually inexorably to cross sex hormones (para 63).

As anyone who watched the proceedings will know, these findings were the polar opposite to the evidence given by the Tavistock and the NHS Trusts. This is hardly surprising given that they disagree with both positions. Not surprisingly the Court of Appeal concluded that “the declaration implied factual findings that the [High] Court was not equipped to make.” (para. 65)

Jurisdiction to make the declaration

The Court of Appeal found that there have been no previous cases where a legal claim has failed but in which a court has gone on to issue a declaration (para. 69). Further, although there is a statutory power to make an advisory declaration or opinion, no such opinion was sought by the claimants (para. 69).

This is a key legal point. Had the claimants asked for an advisory opinion on determining the capacity of children to consent, then the defendants would have offered expert evidence on this point and relevant medical bodies would have had the chance to intervene.

Also, the Court of Appeal found that the declaration went beyond a legal opinion and “covered areas of disputed fact, expert evidence and medical opinion” (para. 72) and “it states facts as law” (para. 80).

The Court of Appeal also quoted its approval of Lord Phillips MR in R(Burke) v General Medical Council [5] who “was critical of some declarations which “did not purport to resolve any issues between the parties, but appeared to be intended to lay down propositions of law binding on the world.”” (para. 78) and stated the “declaration which the [High] Court made does not sit happily with the observations of Lord Phillips” (para. 79).

Gillick

Gillick [6] competence is the legal principle that children under the age of 16 are able to consent to medical treatment when they have sufficient understanding. Whether or not a child has sufficient understanding must be determined by a clinician, on a case-by-case basis.

The Court of Appeal found that the High Court declaration was inconsistent with Gillick competence, noting that “[i]t would have been inconsistent with the ratio of the case that clinicians must be trusted to make the decisions for the court effectively to give them a manual about how to do so” (para. 80). It also found that the High Court’s guidance was inconsistent with Lord Scarman’s dictum that a child’s capacity to consent was “not to be determined by any judicially fixed age limit” (para. 88).

The Court of Appeal also took the opportunity to state that the ratio in Gillick “was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment. Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case bearing in mind that, when Gillick was decided 35 years ago, the issues it raised in respect of contraception for the under 16s were highly controversial in a way that is now hard to imagine.” (para. 76)

Final thoughts

Following the original ruling, trans children have unnecessarily had treatments to which they and their parents consented, and which were recommended by clinicians, indefinitely withheld. This has likely led to them experiencing the irreversible and distressing effects of their natal puberty. It is hoped that after this ruling, the Tavistock will start to refer children to endocrine services immediately once more, so that they can access appropriate treatment.

There are concerns shared by many that the case was also a Trojan Horse to attack the rights of girls seeking reproductive health care. If Gillick competence is overturned, then parents would be able to prevent their children from seeking abortions or contraception. Some of these concerns centre on the construction of the legal arguments and the involvement of the solicitor, Paul Conrathe. The rule of law demands that a solicitor is free to take any case within his expertise and that clients should have access to legal representation, however unpopular their case might be. Further, it is important not to conflate the personal views of a lawyer with those of their clients. Nonetheless, Conrathe states that Jesus Christ is the most important person in his life and he has stated Jesus’s “life is the inspiration for the work I do” [7]. This work has included representing a series of pro-life clients who have sought restrictions on abortion in court cases, including in particular Axon [8], which also sought to overturn Gillick competence. The clear restatement of Gillick competency in this current case offers much needed reassurance to anyone concerned about reproductive rights.

Sadly, it seems that the High Court was ensnared in the current media driven hysteria around trans people. The court unfortunately made numerous errors of law, which in our view prompted it to produce a judgment that would be welcomed by transphobic British newspapers. We are delighted that the Court of Appeal has now upheld the rule of law by documenting the manifest legal errors of the High Court and overturning the judgment. The Court of Appeal noted aptly that the “… role of the courts is to decide discrete legal issues” (para. 3).

There are clearly problems at the Tavistock, but the best way to identify and address them is through the Cass Review, rather than via a court case brought by partisan claimants seeking to further their cause. We do remain concerned however that a damning report on the Tavistock by Cass may prompt an increasingly trans-hostile government not to introduce desperately needed service improvements but to try to close the Tavistock entirely.

Trans Legal Project

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[1] AB v CD and the Tavistock [2021] EWHC 741 (Fam)

[2] [2020] EWHC 3274 (Admin)

[3] WPATH is recognised as the leading international body for professionals involved in the treatment of transgender individuals and has published consensus driven internationally accepted guidelines since 1980. The current standards of care are available from https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English2012.pdf?_t=1613669341 [Last accessed 20 Sep 2021]

[4] Bell v Tavistock [2021] EWCA Civ 1363

[5] [2005] EWCA Civ 1003

[6] Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7

[7] L Tsang 02.03.04: Paul Conrathe The Times, 2 Mar 2004. Available from https://www.thetimes.co.uk/article/020304-paul-conrathe-wf32fsz58jn

[8] R (Axon) v Secretary of State for Health [2

The Law Society’s recent guidance on separate-sex spaces gets the law wrong.

It gives a false sense of certainty that could leave law firms exposed.

The Law Society is the independent professional body for solicitors. It produces guidance for law firms covering a range of topics. One such piece of guidance is a policy template to help law firms draft policies for staff who are seeking to transition their gender. This policy template is revised from time to time, but unfortunately the latest version of the template released on 11 June 2021 contains an incorrect summary of the law as it relates to transgender employees using separate sex spaces.

The Law Society's Template for transition and change to gender expression guide contains the following text:

Toilets and changing facilities

We will discuss with you which toilet and changing facilities make you feel most comfortable and you would like to use.

We will communicate with other employees, so they understand our approach.

[Note for firms/organisations: A trans person’s exclusion from the separate-sex facilities that match their gender identity may be permissible but only where it is justified as a proportionate means of achieving a legitimate aim. This reflects current EHRC guidance. It is good practice to provide some gender-neutral facilities with fully lockable cubicles as well as some separate facilities for men and women.]

The linked EHRC guidance is the Employment: Statutory Code of Practice (‘the Employment Code’).

This is an incorrect summary of the law. The well-known statutory exception (para. 28 sched. 3 Equality Act 2010) allowing the exclusion of transgender people from single and separate sex spaces if it is 'a proportionate means of achieving a legitimate aim' does not apply to discrimination in the course of employment. Further, the Employment Code is silent on this issue.

Should an employer wish to exclude an employee from single-sex toilets or changing rooms, then it would need to rely on the test in the Court of Appeal case of Croft v Royal Mail [2003] EWCA Civ 1045. Unfortunately, this case is nearly 20 years old and there is some debate (R. M. White & N. Newbegin, A Practical Guide to Transgender Law. Law Brief Publishing, 2021, 118) over the extent to which it reflects current law and best practice. An employer who chooses to rely on Croft would need to carefully understand the statutory changes since Croft and more recent decisions such as Taylor v Jaguar Land Rover 1304471/2018.

Given the uncertainty in the law in this area, the Law Society would be best advised not to provide a one-line legal opinion and incorrectly claim this opinion is backed by statutory guidance produced by the EHRC. Not only could this opinion lead to unnecessary discrimination, a law firm might even have to face the financial and reputational consequences of having to pay unlimited compensation as a result of unlawful discrimination.

The Law Society’s guidance in this area is generally high quality and this may seem a relatively minor error. We of course support its intention to assist law firms in their support of trans staff. However, this error has been compounded by an article on legal website, RollOnFriday, which included press comments from the Law Society that reinforce rather than correct the error. A better way to help law firms navigate through this issue would be not to offer an opinion on when trans people can be excluded. Instead leave it to law firms to take appropriate legal advice relevant to their specific situation if they find themselves in the (in our view very rare) position where there is no reasonable course of action other than to discriminate against a trans person.

We have brought this issue to the Law Society’s attention. They have not replied.

Trans Legal Project

21 July 2021