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Karon Monaghan’s take on the new EHRC non-statutory guidance is wrong.

Karon Monaghan, QC and author of a leading book on discrimination law, Monaghan on Equality Law, has written a Twitter thread on why she thinks that the EHRC’s recent guidance on single and separate sex spaces is lawful.

We respectfully disagree. A lot.

In this piece, we are going to go through Monaghan’s assertions and respond to them.

“2/ This is a (long) thread on what the law IS. Some will think the law should not be as it is.”

3/ The answer to that is to seek to change the law, not to seek - even innocently, inadvertently & in good faith - to present an erroneous account of the law. It helps no one: those who want law change need to understand what the law currently is,”

4/ & those seeking to operate SSSs need clarity.”

We agree that it’s essential to present an accurate account of the law. Sadly, this is pretty much where our agreement with her entire stance ends. We do not know what Monaghan thinks the law should be, but in our strong view the law ‘as it is’ is not contained in her Twitter thread.

6/ Sex is defined in binary terms. Men & women are biological males & females, respectively (s.11, 212, For Women Scotland v The Lord Advocate & A’or).”

Sex in the Equality Act 2010 is not always defined in terms of biology. FWS v The Lord Advocate only covers Scotland and the judgment provided no reasoning for the assertion that in the context of Scottish domestic law, sex in the EA 2010 refers to biology.

Furthermore, it is inconsistent with the prior binding House of Lords case of A v Chief Constable of West Yorkshire Police [2004] UKHL 21. In A, the Law Lords found that a trans woman who had fully transitioned or has a Gender Recognition Certificate issued under the then-forthcoming Gender Recognition Act 2004 should be considered as female for the purposes of Sex Discrimination Act 1975 to give effect to (retained) EU Employment Law. We see no difficulty in extending this decision to both services (as these are also subject to retained EU law) and to the EA 2010 as the definition of woman is identical in the two acts.

8/ The concept of GR under the EA is predicated on a binary concept of sex (‘reassigning the person's sex’) & does not protect eg. non-binary or gender fluid people (the non-binding decision in Taylor v Jaguar is wrong).”

It’s not very legally convincing to say a judgment is “wrong”, just because you don’t like it. If you disagree then the least you can do is put some plausible reasons why. We at TLP, for example, don’t think Green [2013] EWHC 3491 (Admin) was decided correctly, so we wrote a 7000 word essay setting out the legal problems with the decision.

Taylor v Jaguar is a reasoned judgment by Employment Judge Hughes based on a careful analysis of Hansard. We have yet to see anyone else who asserts that it was decided incorrectly, or explain where an error of law was made. We await Monaghan’s detailed clarification on what’s wrong with it.

13/SSSs [single and separate sex spaces] will of necessity be directly discriminatory as against the excluded sex (exceptions are conceivable but ignored for present purposes). However, a SSS is permitted where it pursues a legitimate aim & is proportionate (Sch.3 Pt 7).”

Note that Sched. 3 Part 7 does not apply to employment discrimination law. Therefore, the legal test of whether an SSS (such as toilets, showers, changing rooms) is permitted if it pursues a “legitimate aim & is proportionate” does not apply to employment discrimination law. Both the EHRC’s guidance and this Twitter thread are wrong on this point.

17/ A trans woman (TW) without a GRC is legally male & so is not legally entitled to use women’s SSSs – so excluding a TW without a GRC from a women’s only SSS will ordinarily be lawful.”

Being legally male or female does not give a legal entitlement to use an SSS. In the employment case of Croft v Royal Mail [2003] EWCA Civ 1045 the judges held that the legal status of a trans woman was not the appropriate test of whether she was entitled to use a woman’s toilet. Instead, the correct test was whether she had made sufficient progress in her transition, to be decided on a case-by-case basis (it “depends on all the circumstances” per LJ Pill para. 53). Although we believe Green was wrongly decided, nonetheless in Green, HHJ Richardson approved Croft noting he was “influenced by the judgment of the Court of the Appeal in [Croft]”.

The EHRC’s “Services, public functions and associations: Statutory Code of Practice” paras. 13.57-13.60 takes the reasoning in A and Croft and applies it to services. These specific paragraphs were reviewed by the High Court in AEA v EHRC [2021] EWHRC 123 (Admin) which found them to be lawful.

“26/Generally, the exclusion of TWs from women’s refuges, sexual trauma services (see the Explanatory Notes), communal changing rooms where women will be in a state of undress, intimate services (eg waxing), for example, is likely to be lawful as pursuing one or more of the”

“27/legitimate aims and proportionate. In every case the impact on TW will need to be considered, treated seriously & properly put in the balance.”

No authorities are given for these assertions save the Explanatory Note which does not have any legal weight.

“28/When undertaking this exercise, it should be borne in mind that it is unthinking & unempathetic to stigmatise those women for whom the presence of TW in limited private, secure, & supportive women-only spaces will be disturbing or even distressing, as transphobic.”

Within this section, Monaghan conjures once more the mythic image of the trans woman as inevitably alien and a threat. She seems to assume that the mere proximity of a trans woman per se might be disturbing or distressing, rather than talking about what an individual trans woman either does or does not do, is reasonably likely to do or not do, or even the extent of her transition.

We are not aware of any trans women who have any interest whatsoever in disturbing or distressing cisgender women in a single or separate sex space. All trans women actually want is to be able to get on with their lives without facing prejudice and discrimination, without being misrepresented in the newspapers every day, or having to face the spiraling risk of hate-driven abuse and violence against them (something which this latest EHRC guidance is likely to increase).

33/There may be circumstances where the needs of all groups can be readily accommodated (self-contained gender-neutral cubicles; third spaces); sometimes not.”

In Croft, Sarah Croft’s employer allowed her to use the disabled toilet, but not the women’s toilet. Part of the reason for this was because a lot of her colleagues were from particular ethnic minorities, used the toilet to get changed, had known Sarah when she was living as a man and had objections to sharing with her. The Court found that this was lawful at that point in time, but once Sarah made further progress in her transition this would no longer be the case. Therefore, the provision of gender-neutral cubicles does not allow an organisation to practice blanket discrimination against trans people.

34/Ultimately, it will depend on context & the impact on all service users (where the toilets are used by staff, employers need to be mindful of H&S laws that deal with male & female toilets specifically).”

Health and Safety laws that deal with toilets were cited by counsel in Croft as a reason why Sarah Croft could not be permitted to use the female toilets until she was legally female. This argument was rejected by the judges.

36/Finally, the exceptions on SSS do not apply to harassment or victimisation – the law requires that dignity & respect are accorded to all; that is women as well as TWs”

So, to this final point, if trans women are not women, then they must be men? This is a particularly insulting thing to write about people who in many cases have dealt with an overwhelming and painful understanding of their true identity for years, who take cross-sex hormones to develop the secondary sexual characteristics of women, who may have undertaken major surgery for which they have faced extensive waits, who may be seen as visually cisgender by society in everyday life and who are treated that way, presenting as women for many years, who go by a female name in which they hold all identifying documents and who under GRA 2004 s. 9(1) are women for all purposes. It’s all particularly ironic given Monaghan is writing about the need to treat trans women with dignity and respect?

The biggest flaw in Monaghan’s analysis though is that she fails to consider whether blanket bans against trans women are lawful. The EHRC’s non-statutory guidance asserts that they can be lawful, a claim enthusiastically taken up in toxic press coverage today, but this assertion is contradicted by both Croft and the EHRC’s own statutory code.

Our advice to organisations is not to follow the EHRC’s latest flawed guidance but to continue to follow the EHRC’s “Services, public functions and associations: Statutory Code of Practice” paras. 13.57-13.60 when it comes to public services. Failure to follow the statutory code must be taken into account by courts and tribunals and is admissible in evidence against you – see the Equality Act 2006 s. 15(4). For employment law, Croft remains the leading case.

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1 Comment

Apr 06, 2022

Good job on the law! As a cis ally, I find the tone and language of her thread disturbing and distressing. Also the presumptive "women as well as TW". Has she seen your arguments?


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