Professor Alex Sharpe, Keele University
This blog post was updated on 22 October 2018.
As we approach the deadline for submissions concerning reform of the Gender Recognition Act (GRA) 2004, debate over the likely effects of adopting a system of gender self-declaration has intensified. However, opposition to reform has come not only from the right-wing media, so-called gender ‘critical’ feminists and the Christian Right. It has also come from within the legal community.[1] In particular, barrister, Julian Norman, has made a series of arguments as to why a system of gender self-declaration will undermine cis women’s rights, and in particular, the right to exclude trans women from women-only spaces.[2]
Essentially, she makes two arguments:
Argument 1
The appropriate ‘comparator’ for a trans woman without a Gender Recognition Certificate (GRC) who brings a discrimination claim under current law, is a ‘man.’ In making this claim, she relies on comments made by HHJ Richardson in R (Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin), a case in which a trans woman prisoner, located within the male estate, failed to establish she had been the victim of discrimination in circumstances where the prison governor had denied her access to a series of items of women’s apparel (tights, make-up, wig …)
If the ‘comparator’ for a trans woman without a GRC is a ‘man,’ then most trans women have scant chance of succeeding with a discrimination claim where they have been excluded from women-only spaces, because identifying the correct comparator is a threshold question. Such spaces therefore are ‘protected.’ It is for this reason that Norman makes argument 2 below, which focuses on trans women with a GRC, who presumably are thought to ‘threaten’ such spaces.
Argument 2
- trans women holding a GRC are legally female,
- Equality Act (EA) provisions pertaining to gender segregated space are ‘sex’ based,
- therefore schedules 3 and 23 of the EA, which allow service providers to discriminate in circumstances where it is “a proportionate means of achieving a legitimate aim,” do not apply to GRC holders.
Here it is argued that if premises (i) and (ii) are correct, reform expanding the number of people capable of acquiring a GRC will necessarily reduce, if not extinguish, occasions where schedules 3 and 23 might be invoked.
In an article in The Guardian (here) I rebut argument 2. Here I want to focus on Norman’s first argument.
Rebutting Argument 1
If Norman’s argument is correct, the effect would be to preclude trans women (and trans men, though the focus here is on trans women given the debate is framed around women-only spaces), who are excluded from women-only spaces, from successfully pursuing a discrimination claim. She cites and relies on HHJ Richardson’s comments in Green regarding the identification of an appropriate comparator for a trans woman who lacks a GRC. At paras 66-70 his honour asserts:
“A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.”
The difficulty with this judicial analysis, upon which Norman relies, is that it would, if a correct statement of the law, defeat the whole purpose of the Equality Act, at least so far as it applies to one of the nine protected characteristics: ‘gender reassignment.’ This protected characteristic covers a trans person who “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” (s. 7). In other words, a claimant need not be a GRC holder. Moreover, it should be recognised Green was not concerned with women-only space. That is, the case was not concerned with the question of prison allocation. Accordingly, HHJ Richardson’s comments are not limited in this way. Rather, they extend to all trans women lacking a GRC who pursue a discrimination claim in any context under the protected characteristic of ‘gender reassignment’ (s. 7 EA).
Thus, according to HHJ Richardson’s analysis in Green, the overwhelming majority of trans people, because they currently lack a GRC (only approximately 4,500 GRCs have been granted at the time of writing), would have their experience benchmarked against a male comparator. The effect of this would be to reduce such cases of discrimination to the poverty of an ‘equal misery’ approach. Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women-only bathroom or refuge, her experience would be compared to that of a man. Obviously, a man would also have been excluded. Therefore the conclusion that must follow is that there has been no discrimination. HHJ Richardson’s analysis amounts to nothing short of transphobic nonsense and is a spectacular example in the exercise of power and subordination. Crucially, it makes s. 7 of the EA unworkable. This can never have been the intention of parliament given the breadth of coverage of the provision and the mischief it was designed to remedy. Accordingly, his analysis must be wrong.
Moreover, in Green, HHJ Richardson claimed to be influenced in his analysis by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. Yet, the Court of Appeal’s analysis in Croft differs in a fundamental respect. While HHJ Richardson presents lack of a GRC as critical, the Court of Appeal in Croft were more circumspect. Accordingly, while a male comparator was applied in Green, the Court of Appeal made clear in Croft that “the respondent could not escape liability on the basis that C was at the material time a man and that prohibition on the use of the female toilets meant that she was treated no differently than other men.” Rather, Croft articulated the proposition that the question of when female toilets could be used by a trans woman depended on the overall circumstances. Key among these circumstances appears to have been whether or not C was socially accepted as a woman in her working environment. As the Court of Appeal held: “[t]he employee was not treated less favourably than other women employees unless and until she could establish that she should be treated as a woman.”
Thus, Croft, which precedes the EA, and which must therefore be read in light of its provisions, does not support the assertions of HHJ Richardson upon whom Norman relies. Crucially, there are only two interpretations open: (1) HHJ Richardson’s analysis is correct and therefore s. 7 of the EA is effectively unenforceable or (2) his analysis is an incorrect statement of the law. To my mind, the latter interpretation appears compelling as it cannot be said parliament intended to create discrimination law rights for a minority group, only a handful of whom could ever enjoy them. It seems unlikely Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did. Indeed, in the only case on point apparently litigated since the enactment of the EA, a County Court awarded a trans woman £1,500 in damages after a publican refused her access to the women’s toilets and then barred her from the pub when she complained (Brook v Tasker, County Court at Halifax, Unrep, 7 March 2014).
We should embrace reform. The costs of doing so for cis women are negligible. The costs of NOT doing so for trans and non-binary folk are substantial.
* The government’s consultation process for reforming the GRA concludes this Friday (19/10/18). Please ensure you make a submission. This can be done electronically. The form is available @ Stonewall https://www.stonewall.org.uk/our-work/campaigns/come-out-trans-equality
[1] See, for example, Profs Rosa Freedman and Rosemary Auchmuty’s article, ‘What Would Changes to the Gender Recognition Act Mean? Two Legal Views,’ The Conversation, 5/10/18 https://theconversation.com/what-would-changes-to-the-gender-recognition-act-mean-two-legal-views-103204
[2] Julian Norman, ‘Is Everyone Really Wrong?’ #ManFriday, 22/8/18 https://manfridayuk.org/2018/08/22/is-everyone-really-wrong/
HHJ Richardson’s analysis may, in your opinion, ‘amount to nothing short of transphobic nonsense’, but unfortunately opinions don’t change the law.
Instead of mounting what you somewhat optimistically refer to as a ‘rebuttal’, why not –
1. Lobby for greater clarity in s. 7 of the Equality Act, or
2. Test the decision in court. Find a claimant who’s prepared to take the issue all the way to the High Court and support them (an unreported County Court decision won’t cut it, I’m afraid).
Not going to get into an interminable conversation here, but I’m not suggesting opinions change the law. I’m suggesting a particular articulation of the law is incorrect.
So, if this particular articulation of the law is incorrect, in your opinion, do something to change it. Because, despite your opinion, it is the law, and a rebuttal posted on your blog won’t rewrite precedent.
Exactly. It is wrong to cite one High Court case involving the male prison estate evidence of the interpretation of the EA in case of single sex spaces when there is statutory guidance and a Court of Appeal precedent Croft that directly deals with the rights of trans women to use single space spaces. In any well argued case involving single sex spaces (not prisons), the courts would not follow Green.
If Green does in fact represent the law as we know it, then it is absolutely essential that trans people get GRCs to protect their rights – including those who are unable to get one today due to spousal veto, lost medical evidence etc. Green strengthens the argument for GRC reform. If Green does represent the law then trans people (subject to the spousal veto) can be legally barred from using toilets, changing rooms etc – for up to 5 years after they start their transition.
The statutory intent – as confirmed by the EHRC – is that the single sex exception is the correct mechanism for weighing the rights of an individual trans women agains the rights of women (cis and trans) generally.
The blog piece is a good summary of why arguments based on Green don’t make sense. A few additional points.
Croft is a Court of Appeal case that predated the GRA. It is clearly part of the ratio of Croft that legal gender does not affect the choice of comparator. And obiter that not even GRS is needed before the comparator for a transwomen becomes a cisgender woman.
It is unthinkable that passing the GRA, an act to improve the legal rights of trans people, stripped the right not to be discriminated in the course of their employment from thousands of trans people. Yet under the GRA an individual has to wait a minimum of 2 years for a GRC and often many years more if the spousal veto is deployed. Yet Croft contemplates the comparator switches before GRS, which at the time would have been 2 years into the transition.
Exactly how Croft applies to the Equality Act is open to discussion. The view taken by the EHRC statutory code is that the comparator for trans people is other people of the gender in which the comparator presents and the discretion shown in Croft applies to the single sex exception (13.57-13.60). In the absence of relevant case law, this has to represent the best view of the law as courts have to take take it into account (s. 15(4)(b) Equality Act 2006)
This brings me to Green. Seeing Charing Cross misspelled does not give me a feeling of confidence. This is confirmed by the statement that photographic evidence has to be submitted to obtain a GRC; this is not the case, although I wonder if the judge was perhaps mislead by counsel. The judge then makes clear that the Equality Act submission was not fully argued. He then makes the surprising suggestion that he can deal with this part of the claim “quite quickly”
Relying on Croft to support the notion that the comparator depends on the legal gender of the applicant is clearly wrong. Also, if the judge had intended this notion to apply to single-sex spaces then this is in conflict with the code, which he had to taken into account (although he was entitled to disregard if he had good reason).
Green has to either be viewed as restricted to the situation of male prisoners or else incuriam.
Rachel please explain why the Equality Act makes any provision at all for female only spaces and even gives examples where transwomen with GRCs are reasonably (proportionately and legitimately) excluded.
It’s very tiresome to keep having to rebut these points. But the GRA was only ever expected to advance recognition as the opposite sex to a tiny minority. As you say, about 4,500 people. When the 2004 GRA was being debated it was estimated that it applied to 5000 people maximum. Do you think a GRC shouldn’t convey any special status?
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